TO ENSURE THAT the “best possible system” of judicial conduct review is being utilized in New Hampshire, the NH Supreme Court has empowered a task force to examine the state’s Judicial Conduct Committee (JCC) and Rules of Judicial Conduct and recommend any necessary changes.

The group’s formation and membership were announced at a press conference on Sept. 28 conducted by the task force’s co-chairs, Rev. Jonathan DeFelice, president of St. Anselm College, and attorney Wilfred L. “Jack” Sanders, Jr. Two weeks prior, DeFelice and Sanders were asked by members of the Supreme Court to chair and organize the group.

DeFelice and Sanders stressed that the task force is “autonomous and independent from the Supreme Court” and that they were given “the freedom” to determine the size of the group, its membership, agenda and procedures. They have selected a group of 18 citizens from a variety of professions, the majority of whom are “not of the bench or bar,” according to Sanders.

The group will hold its first meeting later this month, most likely at St. Anselm’s College, to begin its review of the structure and work of the JCC. DeFelice and Sanders said they plan to “make the process as public as possible” by opening most of their meetings to the public, although that is something the entire task force must first agree to.

The JCC was established by the NH Supreme Court in 1977 by rule of the court. The commission has the power to investigate and discipline judges charged with violations of the judicial code of conduct. Members of the JCC are appointed by Supreme Court justices. The commission’s powers and procedures are governed by the court, as well. The justices have subpoena powers and “veto” power over any press releases prepared by the commission. The JCC currently holds its meetings in the Supreme Court building and its administrative staff also works for the justices. “I’d suggest that in ’77, that’s the way it was for many states across the country,” Sanders said.

“Issues have presented themselves, however, in the last year that have indicated to most people that changes need to be made,” said Sanders, referring to the JCC’s investigation of three sitting Supreme Court justices since March. “It was never envisioned under the rules of the existing JCC that there would be issues involving sitting judges of the Supreme Court that would have to be dealt with by a committee of that court. The Supreme Court itself recognized that changes need to be made and established this [task force].”

Among the issues the task force will be addressing are the membership of the JCC, where the commission should meet, where its administrative staff should come from and whether it should have subpoena powers. “We’re starting off with a really clean piece of paper and considering all these issues,” said Sanders.

Judicial discipline in other states
An examination of judicial conduct bodies in other states shows that most are no longer as intertwined with the Supreme Court as the JCC is here in New Hampshire.

A state’s highest court – usually the Supreme Court – is the final authority in judicial discipline cases in 48 of the 50 states. (Illinois’ Courts Commission is that state’s adjudicating and final disciplining body; in Oklahoma, the Court on the Judiciary Trial Division adjudicates complaints and its Appellate Division metes out discipline.) In most states, the body charged with investigating judicial conduct complaints is typically quite independent from the Supreme Court, according to Cindy Gray, director of the Center for Judicial Conduct Organizations of the American Judicature Society.

Such is the case in Michigan, according to Vesta Svenson, interim director of the state’s Judicial Tenure Commission. The commission, which is composed of five judges (appellate, circuit, probate and of courts of limited jurisdiction), two attorneys and two laypersons and was established in 1968 through the state constitution.

Michigan’s Judicial Tenure Commission is “totally separate” from the Supreme Court, said Svenson. It is housed in a separate building from the Supreme Court and has a distinct staff, although its budget is part of the Supreme Court budget, Svenson said. The commission’s staff investigates complaints of judicial misconduct and reports back to the nine-member commission to provide status of the investigation or request authority for a continued investigation. When an investigation reaches the formal complaint stage, the executive director serves as the examiner/prosecutor and the commission essentially becomes the judge in the hearing. Often, the commission – whose members are scattered across the state – opts instead to ask the Supreme Court to appoint a special master to conduct the hearing, take testimony and issue a report of findings of fact and conclusion of law. The special master is usually a retired judge.

The commission then hears any objections to the master’s report and decides whether to accept it. If there has been a finding of misconduct, the commission adds to the master’s report a recommendation for discipline and submits the full report to the Supreme Court, which is the “ultimate imposer of discipline,” according to Svenson. That court also rules on appeals from adjudication.

Svenson said that the commission has jurisdiction over all judges, including Supreme Court justices. If a grievance were filed against a sitting justice, he said, the justice would probably be suspended with pay while the matter was being addressed. The remaining six justices would likely appoint a special master to hear the case, as usual, and the complaint and discipline would be handled as in any other case, Svenson said, as would an appeal.

Svenson believes that having the commission work independently of the Supreme Court answers the public’s desire for an impartial judicial discipline process. “Judicial discipline bodies exist primarily to maintain, enhance and secure public confidence in the fairness and impartiality of the judiciary,” said Svenson. “I get the impression that some judicial disciplinary bodies are sort of in the coat pocket of the Supreme Court. That’s not the case here,” he said.

North Carolina’s Judicial Standards Commission – established in 1973 by state statute – operates differently, but its Supreme Court again plays a limited role in the investigation of judicial conduct complaints. The commission is composed of two lawyers, two laypersons and three judges – one from the court of appeals, one from the superior court and one from district court. The Chief Justice of the Supreme Court appoints the three judges.

According to Debbie Carrington, executive secretary of the Judicial Standards Commission, the commission utilizes personnel from the State Bureau of Investigation, which is part of the state Attorney General’s office, to investigate a complaint of judicial misconduct. When presenting a case against a member of the judiciary, the commission uses special counsel, also from the AG’s office.

If the commission determines that investigation of a complaint is warranted, it prepares and serves a formal complaint to the judge in question and holds a hearing, Carrington said. It then makes a recommendation for discipline, which is served to the judge. The judge has 10 days to petition the Supreme Court for review of the decision. If the court decides to review the case, it hears it de novo and determines if the recommended discipline was appropriate. If there is no review, the Supreme Court simply goes forward with the disciplinary action recommended by the commission. There is no appeal from adjudication under North Carolina’s judicial conduct system.

Like Michigan, the commission has a considerable amount of autonomy in that it “prescribes our own rules of procedure” and makes an independent recommendation for disciplinary action, said Carrington. The commission’s administrative staff is also independent of the Supreme Court, as is its office in the Court of Appeals building. (By state law, the chair of the commission is a Court of Appeals judge.) The commission has its own budget, which is part of the unified Judicial Department budget.

Carrington said that for many states, it has been a challenge to set up a judicial discipline system in which the investigation and adjudication are done outside of the Supreme Court because it is unconstitutional for both activities to come under the purview of one group. Because North Carolina’s Judicial Standards Commission only makes recommendations for discipline, but does not actually discipline, their system works.

North Carolina also has in place a mechanism for dealing with conduct complaints against a Supreme Court justice, according to Carrington. A provision in the law states that any recommendation for discipline in such a case would not be made to the Supreme Court, but to a designated panel of the Court of Appeals. That body becomes the final disciplinary authority in such cases.

Ohio also utilizes a very autonomous conduct commission, according to John Coughlan, Disciplinary Counsel for the state’s Board of Commissioners on Grievance and Discipline. Coughlan said there were allegations in the 1980s that the conduct commission was not acting appropriately because of its ties to the Supreme Court, so the state has now “gone to the other extreme – entire independence.”

Coughlan’s office is the central state agency responsible for investigating and prosecuting judicial complaints. Certified Grievance Committees established by city or county bar associations and made up of volunteers and laypersons have the same authority, but usually opt to leave judicial investigations up to the Office of Disciplinary Counsel.

The state’s Board of Commissioners is made up of 28 members appointed by the Supreme Court: 17 lawyers, seven judges and four laypersons. A panel of three commissioners reviews for probable cause the complaint and summary of investigation provided by Coughlan’s office. A separate three-commissioner panel is formed to conduct a hearing on the complaint (if warranted), to deliberate and draft an opinion. The opinion, which includes findings of fact, found violations and a recommended sanction, then goes to the Supreme Court, which after hearing any objections to the opinion issues a final order on the matter. There is no appeal of the final disciplinary action.

Coughlan said that the disciplinary counsel and Board of Commissioners are an “arm of the Supreme Court” in that they are part of the Supreme Court budget and were created by rule of the court, but the court has “no say in my judgments.”

“If I decide to investigate a complaint, I don’t ask anyone. If I decide to prosecute, I don’t ask anyone,” said Coughlan. “Investigation and prosecution are done independently of the court.”

The Office of Disciplinary Counsel is also housed in a different building from the Supreme Court. Staff is not shared between the court and Coughlan’s office.

Coughlan agrees with Svenson on the importance of keeping the body that investigates and prosecutes judicial conduct cases separate from the courts. “The public already has a very strong suspicion that judicial conduct review is like the fox guarding the hen house,” said oughlan.

“We have the high burden of dispelling the pre-existing assumption that we’re going to cut a break for ‘our own’ – for lawyers and judges. So we have provided a process in which judges have no input on my process or decision-making. That’s how it goes here,” he said.

Building a better system in NH
The task force looking at New Hampshire’s conduct commission hopes to complete its review of the JCC before the new legislative session begins in January. Once completed, the committee will present its report and recommendations to the three branches of state government.

DeFelice and Sanders believe that the review process will result in a stronger, more effective – and more trusted – judicial conduct system. “I’m confident that [the committee’s work] will result in complete renewal of the confidence that we should have in the judiciary in our state,” said DeFelice.

“As a result of everything that’s going on, the system will be stronger, will be far stronger…We expect a very fine system that we’ll be much better for once it’s done,” agreed Sanders.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer