In a decision important to all court-referred mediation, the New Hampshire Supreme Court found the $50 Rule 170 administrative fee constitutional. In the underlying personal injury case, the judge had found the fee violated Part 1, Article 14 of the N.H. Constitution and referred the question to the Supreme Court.
The fee in question was part of a recent revision to Superior Court Rule 170 which requires parties in most civil cases to use ADR. Such parties have the option to choose either a paid (by them) neutral or a volunteer. If a volunteer is chosen, the Rule requires each party to pay a non-refundable $50 fee, to be used to support the court system’s Office of Mediation and Arbitration. Indigent parties may have the fee waived.
Part 1, Article 14 provides that each person “is entitled to a certain remedy, by having recourse to the laws…to obtain right and justice freely, without being obliged to purchase it…” In 1986, the Court ruled that fees for “special sessions” of probate courts were unconstitutional, based on this provision. The parties in this case argued that the $50 ADR fee required them to “purchase justice.”
The Supreme Court disagreed, finding that the ADR fee was a reasonable, fixed fee to raise revenue. Such fees have been found constitutional in the case of bail commissioner fees and special master fees. The Court noted that the Article 14 prohibition is intended to prevent bribery, which is not the impact of the ADR fee. “Furthermore, the third-party neutral is not a judge and has no power to make judicial decisions. The impropriety, or appearance thereof, which was the concern in Estate of Dionne, 128 N.H. at 685, is therefore absent in this case.”
The Court distinguished the impact of the ADR fee on the plaintiffs and on defendants. If the plaintiff fails to pay the ADR, it is “both reasonable and constitutional” that the case be dismissed. However, defendants may not lose there right to a jury trial or to be defaulted for failing to pay the fee. For defendants, the ADR fee is a litigation cost that must be paid at some point. If not ultimately paid, the State may take measures to recover the fee, including filing suit.
This decision is important to the development of court-referred ADR in New Hampshire. On a practical level, the fee was established to provide a major part of the funding for the Court’s Office of Mediation and Arbitration. More generally, the decision may discourage questions about requiring litigants to pay fees for court-referred mediation.