By the authority vested in me, pursuant to part II, article 44 of the New Hampshire Constitution, on July 1, 2009, I vetoed Senate Bill 88, an act relative to the recommendations of marital masters.

I am vetoing Senate Bill 88 because marital masters are not judicial officers within the meaning of the State Constitution and I believe this bill would vest marital masters with the characteristics of a judicial officer.

In 2007, the Supreme Court requested the introduction of Senate Bill 112 to allow the recommendations of marital masters to become final absent review and signature by a judge, unless a party requested review of the decision by a judge within 10 days. The Senate questioned the constitutionality of the Supreme Court’s proposed legislation and passed a resolution asking the Supreme Court to issue an advisory opinion addressing the constitutionality of SB 112. The Supreme Court ruled that SB 112 was unconstitutional because marital masters are not judicial officers within the meaning of the State Constitution and are only authorized to make recommendations that have no binding force upon the court. Opinion of the Justices, 155 NH 524 (2007).

In its decision, the Supreme Court stated that it would not opine on whether the constitutional infirmity of SB 112 could be cured if parties to the case consented in advance to marital masters entering final judgment without the participation of a judge. Then, during this session, the Supreme Court requested the introduction of SB 88. This bill would allow marital masters to enter final judgment absent approval by a judge if the parties to the case consented in advance to the arrangement. The general court did not ask the Supreme Court to opine on the constitutionality of SB 88.

If marital masters are not judicial officers under the State Constitution and cannot make recommendations that have binding force upon the court, I question why the advance consent of parties to a case can override the requirements of the State Constitution. I also question the wisdom of asking our citizens to assume the additional responsibility and potential burden, during stressful cases in the family division, of deciding whether to allow a marital master to act as a judge.

Presently, under state law, the administrative judge of the judicial branch family division, with the concurrence of the supreme court, nominates marital masters for appointment by governor and council. Under the State Constitution, judges are nominated and appointed by the governor and council. If the desire is to have marital masters enter final judgments in court, the appropriate remedy would be to have them nominated and confirmed as judicial officers are appointed.