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2001 SESSION

01-1089

09/10

SENATE BILL 197-FN

COMMITTEE: Judiciary

AMENDED ANALYSIS

This bill restructures the judicial conduct committee as an independent judicial conduct commission. This bill also makes an appropriation to the commission.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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01-1089

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

267:1 Intent. This act implements the recommendations of the Task Force for the Renewal of Judicial Conduct Procedures by restructuring the judicial conduct committee as an independent judicial conduct commission. The task force established the following 3 principles to guide the restructuring of the committee:

I. The judicial conduct committee should be completely independent of the New Hampshire court system and the other branches of government, and should be renamed the judicial conduct commission.

II. Members of the new judicial conduct commission should be appointed by several authorities: the governor, the senate president, the speaker of the house of representatives, the New Hampshire supreme court, and the president of the New Hampshire Bar Association.

III. In keeping with its independent status and an accompanying need for vigorous

professionalism in the management of its work, the new commission must be free to hire staff and maintain its separate office.

267:2 Statement of Purpose. In order to maintain a healthy democracy, the legislature finds that it is vital that the citizens of New Hampshire have an independent commission able to adequately discipline the actions of judges who have breached the Code of Judicial Conduct. The general court recognizes that the judicial branch of government must act independently, in accordance with the New Hampshire constitution, in making its adjudicatory decisions. The legislature is mindful of the importance of the independence of each branch and believes that it has a duty under the constitution to insure that the judicial branch provides the citizens of New Hampshire fair, equal, impartial, and prompt justice. To meet its duty, the legislature establishes a judicial conduct commission.

267:3 New Chapter; Judicial Conduct Commission. Amend RSA by inserting after chapter 494 the following new chapter:

CHAPTER 494-A

JUDICIAL CONDUCT COMMISSION

494-A:1 Judicial Conduct Commission Established. A judicial conduct commission is hereby established which shall be completely independent of the New Hampshire court system and other branches of government. The commission shall be administered by an executive director, appointed under RSA 494-A:3.

494-A:2 Definitions. In this chapter:

I. "Commission" means the judicial conduct commission established under RSA 494-A:1.

II. "Executive director" means the executive director of the commission appointed under RSA 494-A:3.

III. "Judge" means supreme court justices under RSA 490:1; superior court judges under RSA 491:1; superior court marital masters; district court judges under RSA 502-A:3; and probate court judges, under RSA 547.

494-A:3 Executive Director; Appointment and Duties.

I. The commission shall select and appoint an executive director as the administrator of the commission. The executive director shall be appointed by majority vote of the commission after 30 days public notice and a public hearing. The executive director shall hold office for a term of 5 years. The executive director may be removed from office by vote of 2/3 of the commission. The executive

director may be reappointed using the same procedure for appointment. The executive director shall be a nonclassified state employee.

II. The executive director shall be the administrative head of the commission. The duties of the executive director shall also include:

(a) Employing and supervising commission staff, under RSA 494-A:17.

(b) Submitting an annual report to the governor, senate president, speaker of the house, and chief justice of the supreme court, by October 1 of each year, which details the performance of the commission for the preceding fiscal year. This report shall be a public document.

(c) Submitting budgets to be funded through general funds in the biennial operating budget.

(d) Acting as secretary for all commission meetings.

494-A:4 Commission Membership. The commission shall consist of the following 11 members:

I. Three judges, consisting of one judge or retired judge from each of the superior court, district court, and probate court, appointed by the chief justice of the supreme court with the concurrence of the majority of the supreme court members.

II. Two members appointed by the president of the New Hampshire Bar Association; one member to be approved by the governor and one member to be approved by the president of the senate and the speaker of the house.

III. Two public members who are not judges, attorneys, or elected or appointed public officials, appointed by the governor.

IV. Two public members who are not judges or attorneys, appointed by the senate president.

V. Two public members who are not judges or attorneys, appointed by the speaker of the house.

494-A:5 Terms of Office.

I. The initial terms of office shall be staggered as follows:

(a) For the members appointed under RSA 494-A:4, I, one member shall be appointed for 2 years, one member shall be appointed for 3 years, and one member shall be appointed for 4 years.

(b) For the members appointed under RSA 494-A:4, II, one member shall be appointed for 3 years and one member shall be appointed for 4 years.

(c) For the members appointed under RSA 494-A:4, III, one member shall be appointed for 3 years and one member shall be appointed for 4 years.

(d) For the members appointed under RSA 494-A:4, IV, one member shall be appointed for 2 years and one member shall be appointed for 3 years.

(e) For the members appointed under RSA 494-A:4, V, one member shall be appointed for 3 years and one member shall be appointed for 4 years.

II. After the initial appointment, a member may be reappointed for an additional term of 4 years. Members may not serve more than 2 consecutive terms. Members who have served 2 consecutive terms may not be reappointed until they have been off the commission for a period of 4 years.

III. Commission members shall serve without compensation for their services, but shall be reimbursed for necessary expenses incurred in the performance of their duties.

494-A:6 Vacancies.

I. A vacancy in the office of the commission occurs:

(a) At the expiration of a member's term.

(b) When a member ceases to hold the office, by submitting his or her resignation to the commission, or for some other reason.

(c) When a non-attorney or non-judge member becomes an attorney or judge.

(d) When an attorney member ceases to be a member of the New Hampshire bar, is elected or appointed to public office, or is appointed a judge.

(e) When a member ceases to be domiciled in New Hampshire.

(f) When removed by the commission as provided in RSA 494-A:16.

II. A vacancy shall be filled by the same appointing authority. The successor shall have the same qualifications as the person who is being replaced. If the vacancy results from other than expiration of the term, the successor shall hold office for the unexpired term.

494-A:7 Disqualification.

I. No member shall participate in any proceeding before the commission involving his or her conduct or in which he or she is a witness or is otherwise involved.

II. No member shall participate in any proceeding in which his or her impartiality might reasonably be questioned.

494-A:8 Numbers for Quorum and Action. Six members of the commission shall be a quorum. Six members shall be necessary to take routine action. A vote of 7 members shall be required to take or recommend any disciplinary action.

494-A:9 Election of Chairperson and Vice Chairperson. The members of the commission shall elect their own chairperson and vice chairperson.

494-A:10 Duties; Proceedings.

I. The commission shall be responsible for addressing complaints concerning the conduct of judges in the courts of this state. The commission shall determine if a complaint constitutes conduct which violates the Code of Judicial Conduct. The commission shall adopt rules for its proceedings under this chapter. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. If the commission finds evidence of criminal acts, it shall report such evidence to the attorney general. If the commission finds that a judge's conduct warrants the removal of the judge, the commission shall refer the matter to the legislature.

II. The commission shall, by rules under RSA 494-A:12, adopt a Code of Judicial Conduct based on the Model Code of Judicial Conduct (August 1990), as adopted by the House of Delegates of the American Bar Association on August 7, 1990.

494-A:11 Procedures for Complaints; Public Availability. The commission shall adopt rules of procedure to be followed in making its determinations which shall incorporate the following:

I. When a complaint is received by the commission, the commission shall determine if the complaint alleges a violation of the Code of Judicial Conduct. If the commission determines that the complaint on its face alleges no violation of the Code of Judicial Conduct, the commission shall dismiss the complaint and respond to the complaining party, explaining the basis for its decision. If the commission determines that the complaint alleges a violation, the commission shall send a copy of the complaint to the judge and the judge shall have 21 days to respond in writing. There shall be no direct communications between the judge and the complaining party. Following the response from the judge, the commission shall send a copy of the response to the complaining party. The commission may also conduct such further investigation as it may deem necessary before ruling on the complaint. The commission shall, within 90 days of the first meeting following receipt of the complaint, determine whether there is probable cause to believe that the judge has committed a violation of the Code of Judicial Conduct. If not, the complaint shall be dismissed. If so, the commission shall proceed to make a final determination as to whether a violation has occurred. In any event, the complaining party and the judge shall be informed of the ruling on probable cause along with a brief explanation of the basis of the decision.

II. After making a finding of probable cause, the commission shall conduct a public hearing before making a final determination. After probable cause has been found, the complaint, response, transcripts, findings, deliberations, and reports of actions taken shall be available to the public under the provisions of RSA 91-A. The exemption regarding internal personnel practices in RSA 91-A:5, IV shall be inapplicable to proceedings or documents under this paragraph relating to a complaint before the commission.

III. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. The commission may recommend that the supreme court suspend the judge.

IV. If the complaint referred to the commission alleges conduct that would constitute a crime, the commission chairperson shall immediately refer the matter to the attorney general. The referral of such a complaint to the attorney general shall not supersede the commission's jurisdiction relative to whether a violation of the Code of Judicial Conduct has occurred. However, the commission shall suspend its activities until the criminal proceedings, if any, are concluded.

V. In all cases, whether a complaint is dismissed or not, complaints received by the commission shall be made available to the administrative judge of the court in which the judge complained against holds office. Furthermore, all complaints against judges received by the administrative judges and other judges of the superior court, the district court, and the probate court shall be forwarded to the commission.

VI. The statute of limitations for any complaint shall be 3 years from the act which is the subject of the complaint or from the conclusion of the trial or appeal during which the act occurred, whichever is later.

494-A:12 Rules. The commission shall have the authority to adopt rules, after public notice and hearing, necessary to perform the objectives of this chapter. The commission shall employ the rules used by the supreme court on the effective date of this chapter as interim rules, to the extent that they are not inconsistent with this chapter. The commission shall adopt its own rules as soon as practicable which shall replace such interim rules, but in no event later than July 1, 2002. Prior to the adoption of any rule, or the amendment or repeal thereof, the commission shall publish or otherwise circulate notices of its intended action and afford interested parties the opportunity to submit comments either orally or in writing.

494-A:13 Subpoena Power. The commission shall have the powers of subpoena.

494-A:14 Appeals. An aggrieved party may appeal an order or decision of the commission to the supreme court, provided that such appeals shall be limited to consideration of matters of procedure and errors of law.

494-A:15 Funding. The commission shall prepare and administer its own budget, including funding for such items as staff, office space, and operating expenses. Funding shall be authorized by the legislature only from sources other than those appropriated for the judicial branch.

494-A:16 Removal. The chairperson, with the majority of the commission, may remove a member for cause, including unexcused absences or serious violations of a commission rule.

494-A:17 Staff and Facilities.

I. The executive director shall, with the approval of the commission, hire staff, which may include attorneys, investigators, and clerks, as may be necessary to carry out the duties of the commission. The executive director may contract for such temporary professional, administrative, and clerical services as deemed necessary by the commission. Full-time staff shall be nonclassified personnel who shall be entitled to state employee benefits.

II. The commission shall select office space, which shall be as independent as possible from other facilities of any branch of government.

267:4 Judicial Performance Evaluations. Amend RSA 490:32, II to read as follows:

II. The program for performance evaluation shall include, but shall not be limited to, [review of records of the supreme court's committee on judicial conduct which are public records under supreme court Rule 40;] a questionnaire, to be designed by the supreme court[;], and a self-evaluation form to be completed by the judge. The supreme court shall strive to achieve uniformity among court evaluation questionnaires, recognizing that the questionnaires for each court may differ due to the jurisdiction of the courts. Questionnaires shall be distributed to a representative sample of attorneys, parties, witnesses, jurors, court personnel, and others who have appeared before a judge during the evaluation period, for the purpose of evaluating the performance of the judge. The questionnaire shall include, but shall not be limited to, questions relative to the judge's performance, temperament and demeanor, judicial management skills, legal knowledge, attentiveness, bias and objectivity, and degree of preparedness. Completed forms shall be returned to the administrative judge, unsigned, within 30 days of issuance. All responses shall remain confidential.

267:5 Repeal. RSA 490:30, relative to the committee on judicial conduct, is repealed.

267:6 Date of Operation of Commission. All appointments to the judicial conduct commission shall be made prior to September 1, 2001. The initial meeting of the commission shall be called in September by the governor's first-appointed member of the commission. All necessary staffing of the judicial conduct commission shall be made prior to January 1, 2002. The commission's authority to act upon complaints shall commence on January 1, 2002.

267:7 Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are severable.

267:8 Appropriation. The sum of $125,000 for the fiscal year ending June 30, 2002 and the sum of $250,000 for the fiscal year ending June 30, 2003 are hereby appropriated to the judicial conduct commission established by this act, for the purposes of the administration of the provisions of this act. The governor is authorized to draw a warrant for said sums out of any moneys in the treasury not otherwise appropriated.

267:9 Effective Date.

I. Sections 1-4 and 6-8 of this act shall take effect July 1, 2001.

(Approved: July 13, 2001)

(Effective Date: I. Sections 1-4 and 6-8 shall take effect July 1, 2001.