Independent New Hampshire Journalism · Northfield, NH

The Clerk of the Court in New Hampshire: Real Power, No Ballot Line

A clerk can waive your filing fee, issue an arrest order, and decide what the official record says. No voter has any say in who holds the job. The one courthouse office New Hampshire does elect has had almost nothing to do since 2011.

You will never reach a judge in New Hampshire without going through a clerk first. The clerk takes the filing or rejects it. The clerk sets the hearing date. The clerk decides whether the document you handed across the counter is now part of the record, and later certifies what that record says. Judges decide cases. Clerks decide what a case is made of.

New Hampshire treats the job as important enough to name in its constitution and then removes it entirely from public accountability. Part II, Article 82 says the judges of the courts, probate excepted, “shall appoint their respective clerks to hold their office during pleasure.” No term. No confirmation hearing. No election. A judge hires the clerk and a judge can let the clerk go.

Meanwhile there is exactly one courthouse office New Hampshire voters do fill directly. It is the register of probate, and a 2011 restructuring stripped the job down to almost nothing. You elect the empty chair and you have no say over the desk that runs the building.

Who appoints a clerk, and how many there are

RSA 499:1 puts the appointment power with the justices of the superior court, one clerk for each county, with Hillsborough allowed two because it runs courthouses in Manchester and Nashua. The same section says any clerk may be removed at the pleasure of the court, subject to personnel rules set by the supreme court.

Count the offices and the scale becomes clear. The Supreme Court has one clerk, Tim Gudas. There are 11 superior courts, one per county plus the second Hillsborough location. There are 10 circuits, 31 district divisions, a probate division in every county, and family divisions across the state. The Judicial Branch says each circuit court location has a clerk and a deputy clerk, though in some places one clerk supervises several locations.

None of those people appear on a ballot. All of them were hired by judges.

What a clerk can do without asking a judge

Superior Court Administrative Rule 1-6 sets out the authority in writing, and the list is longer than most lawyers realize. A clerk schedules every hearing and issues the notices to appear and the transport orders. A clerk issues orders of notice, sets and amends return days, and issues orders governing service of process.

A clerk also effectuates court orders, and the rule spells out what that includes: commitment orders, arrest orders, and summonses to appear for contempt proceedings. A clerk selects counsel when the court has ordered counsel appointed, and appoints guardians ad litem in domestic and equity matters. A clerk handles juror duties under RSA 500-A.

Deputy clerks who are not licensed attorneys get a narrower slice of that authority. Clerks and deputies who are members of the New Hampshire bar get something more: under Rule 1-6 they may be appointed by a presiding justice as a master under RSA 519:9, to hear uncontested divorces, applications for temporary orders, ex parte restraining orders in marital cases, and petitions for ex parte attachment, and to run pretrial conferences. That is not paperwork. That is adjudication by an appointed employee.

The Judicial Branch does not hide this. Its own postings for clerk and deputy clerk positions state that the work may include performing quasi-judicial functions as authorized by the court.

One more power deserves attention because it decides whether people can afford to be in court at all. RSA 499:18-b lets any person seek a waiver of court fees by reason of poverty. But it goes further for one group: when a person is represented by a legal aid society, a federally funded legal services project, or assigned counsel, the statute says filing costs shall be waived by the clerk without the necessity of a court order. The clerk grants that. No judge is involved.

The clerk owns the record

RSA 499:4 makes the clerk responsible for keeping every book, record, file, and paper in the office safe from fire, theft, water, and the elements. RSA 499:11 says anything required by law to be filed with the clerk stays a record of that office, and names the clerk “the proper officer to attest copies thereof.” When you need a certified copy of a divorce decree, a judgment, or a criminal disposition, one office in the state can produce it.

What gets destroyed is also a clerk-side question. RSA 499:4-a directs the superior court to set retention and destruction schedules, subject to supreme court approval, and to preserve or transfer any file with the potential for historical significance. The schedule decides how long the paper trail of an ordinary case survives.

The statute takes the bookkeeping seriously enough to attach a penalty. RSA 499:9 requires the clerk to deliver executions, warrants, and other process for collecting fines and costs to the sheriff, and to send a list to the supreme court. RSA 499:10 makes a clerk who neglects that duty guilty of a violation for each neglect. Under RSA 499:16 a clerk is personally responsible for a deputy’s neglect or misconduct.

And RSA 499:18 explains where your filing fee goes. The supreme court sets the amounts. The clerk sets aside 6 percent of each entry fee for an escrow account and 30 percent for the judicial branch information technology fund. Nearly a third of what you pay to open a case funds court software.

Where this collides with the Right-to-Know Law

Here is the part most people get wrong, including people who file records requests for a living. RSA 91-A does not reach the courts. New Hampshire’s Right-to-Know Law binds executive and legislative bodies at the state, county, and municipal level. It does not bind the judicial branch.

Court records are still presumptively public, but the source of that right is different. It comes from Part I, Articles 8 and 22 of the state constitution as the courts have interpreted them. In Petition of Keene Sentinel in 1992, the Supreme Court held that New Hampshire courts have always treated their records as public “absent some overriding consideration or special circumstance,” and placed the burden on whoever wants a record sealed to show a compelling interest. Petition of Union Leader Corp. reaffirmed it a decade later. Supreme Court Rule 12 governs access to that court’s own case records, and Rule 50 of the Rules of Criminal Procedure governs sealing in criminal cases.

On paper the constitutional standard is stronger than the statute. In practice it is weaker in the ways that matter to somebody standing at a counter. There is no five-business-day clock. There is no requirement that a denial name a specific exemption in writing and explain how it applies. There is no itemized cost estimate rule, no fee-waiver framework for the public interest, and no ombudsman, vacant or otherwise. If a clerk’s office tells you no, your remedy is a motion filed in the case and argued to a judge, which means a filing and probably a lawyer.

The Supreme Court’s own process shows the shape of it. Anyone who wants to review a Supreme Court file submits a request form to the clerk’s office by email, and public kiosks in the lobby are the walk-in option. That is a reasonable system run by a competent office. It is also entirely a creature of court rule, revisable by the court, with no statutory floor underneath it.

The office New Hampshire does let you elect

Every county still elects a register of probate. The office is in the constitution, which is the only reason it survives. Before 2011 it was a salaried professional job, and registers helped people work their way through estates, wills, adoptions, and guardianships. The 2011 court restructuring moved that work to the judicial branch and, as New Hampshire Bulletin put it, took the position’s salary, office, duties, and telephone with it. What remains is the preservation of files with potential historical significance.

In 2022 the Legislature asked voters to abolish it. CACR 21 cleared the House 294 to 43. At the ballot box it failed, falling roughly three points short of the two-thirds required. So the office stayed, and so did the elections. Belknap County voters chose Alan Glassman of Barnstead for the current term.

Set the two offices side by side. The register of probate is elected by the people of a county to do a job the Legislature already gave away. The clerk of court is appointed by judges, cannot be removed by voters, waives fees, issues arrest orders, certifies the record, and in some cases hears cases. New Hampshire got that exactly backwards, and it would rather argue about a constitutional amendment than fix it.

What the budget did to the counter

Clerks’ offices absorb whatever the Legislature does to the judiciary, because roughly 75 percent of judicial branch spending is personnel. In April 2025, after the House passed a budget cutting the branch by close to 8 percent, Chief Justice Gordon MacDonald imposed a hiring freeze, stood up an efficiency committee, and said he would consider eliminating at least 31 vacant positions. He told the Concord Monitor the arithmetic was simple: fewer hands “is necessarily going to reduce our ability to get our decisions out.”

He also floated closing the circuit court locations in Hooksett and Goffstown. Neither closure took effect; both still appear on the Judicial Branch’s court directory. The system handles roughly 150,000 cases a year across more than 40 courthouses with about 800 employees.

Notice who sat on the efficiency committee that was asked to redesign the branch. Alongside the Superior Court chief justice and the circuit court administrative judge was a clerk, Pamela G. Kozlowski of the 2nd Circuit. When the judiciary examines itself, a clerk gets a seat at the table. When the public examines the judiciary, a clerk is the counter you talk to and the last word you get.

How to deal with a clerk’s office

Practical advice, learned the hard way. Ask for the docket sheet first; it is the index to everything else and it tells you what exists. Ask which form the court wants, by number, because the wrong form is the most common reason a filing comes back. If you qualify under RSA 499:18-b, say so at the counter rather than waiting for a ruling.

And if you are refused a court record, do not send an RSA 91-A request. The statute does not apply, so the office is under no obligation to answer it. You will lose weeks waiting. File a motion for access in the case itself and cite Keene Sentinel. That is the door that opens.

Two fixes are overdue. The Legislature should decide whether the register of probate is a job or a title, and stop asking counties to hold elections for an office it has already emptied. And the judiciary should write itself a records-response rule with a deadline and a written-denial requirement. A constitutional presumption of openness is a fine thing to have. A clock is what makes it real.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was checked against a primary source before publication; see the fact-check table. Rows marked ATTRIBUTED rest on named reporting or on state documents seen in index form rather than opened in full, and are credited accordingly. The April 2025 budget figures describe the proposal and the response at that time, not the final enacted appropriation. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.