JC-04-009-G
In re: Franklin C. Jones

Committee Report and Recommendation

Within a few days of the event the Committee opened a file relative to Judge Jones' alleged conduct at the State of New Hampshire Conference on Domestic and Sexual Violence. (Rule 40(6) Since the matter was then the subject of a criminal investigation the Committee decided to take no further action pending the outcome of that review, thereby allowing the criminal process to take priority. (Rule 40(8)(i).

On September 10, 2004 Judge Jones was convicted of five counts of simple assault in the Coos County Superior Court. On that date the Supreme Court issued an order suspending Judge Jones without pay and the matter was referred to the Committee for further inquiry pursuant to the Code of Judicial Conduct. (Rule 39). Hon. Douglas Hatfield, Chair of the Committee, disqualified himself from these proceedings. Robert O. Wilson, D.D.S., Hon Raymond A. Cloutier, of the Probate Court. Hon. Patricia C. Coffey, of the Superior Court, Dana Zucker, Clerk of Belknap Superior Court, Mr. Harland Eaton, Ms. Elizabeth Lown, Attorney Wilfred Sanders, and Attorney Alfred T. Catalfo, III heard this matter and this Report and Recommendation is the unanimous opinion of the Committee. Committee members Lawrence O'Connell and Jay Rosenfield were unavailable and did not participate in the hearings or decision.

The Committee then reviewed the sentencing documents from the court and voted to hire outside counsel to draft formal charges. Attorney Martha Van Oot of Concord was chosen for this position. Once formal charges were drafted, Attorney Van Oot's role became that of an independent prosecutor, and she had no further ex parte contact with the Committee, nor did the Committee in any way determine the manner in which the prosecution would proceed.

Formal charges pursuant to Rule 40 (9) were issued on or about November 10, 2004 and served on counsel for Judge Jones, Attorney Russell Hilliard, also of Concord. Attorney Hilliard filed an answer to the charges on or about December 14, 2004.

A public hearing on the charges was begun on January 5, 2005 and a continued hearing held and completed on January 14, 2005. Witnesses were presented by both parties and documents were submitted on behalf of the women who were victims of the assaults and on behalf of Judge Jones. The Committee also had the benefit of reviewing the criminal informations filed by the State, a transcript of the sentencing hearing of September 10, 2004, and a copy of the statement Judge Jones gave to the Attorney General's office during the course of the investigation. All of these items were submitted as exhibits during the course of the two-day hearing.

A copy of the Statement of Formal Charges is attached. Specifically, Judge Jones was charged with violation of three separate Canons of the Code of Judicial Conduct. The allegations were that:

1. Judge Jones violated Canon 1 by personally engaging in conduct that undermined the integrity and independence of the judiciary, in that he engaged in inappropriate sexual contact with five women with whom he had or was likely to have contact in his official capacity as a judge of the Rochester District Court.

2. Judge Jones violated Canon 2A by engaging in unlawful sexual contact with five women in a public place, which led to his conviction on five counts of misdemeanor simple assault by the Coos County Superior Court. This conduct violated the prohibition against behaving with impropriety or the appearance of impropriety and undermined public confidence in the integrity and impartiality of the judiciary;

3. Judge Jones violated Canon 4A(1)(2) and (3) by engaging in unlawful sexual contact with five women in a public place, and thereby conducted extra-judicial activities in a manner that demeaned the judicial office, cast reasonable doubt on his capacity to act in an impartial manner, and interfered with the proper performance of his judicial duties.

Following consideration of all of the evidence, the Committee's report is as follows:

Prior to the incident in question Judge Jones had served as a part time judge in the Rochester District Court from 1986 to his appointment to a full time position in 2001. During that time he exhibited a high degree of professionalism. The testimony of those witnesses who spoke of Judge Jones' fairness, knowledge of the law, and judicial demeanor is supported by the record. It is also clear that Judge Jones was a contributing member of his community and held in high regard by those who were aware of his reputation.

Subsequent to the incident in question it is clear that Judge Jones addressed what he acknowledges as a problem with alcohol. Some time in June he attended a 28-day out-of-state residential program. He has participated in a follow-up program upon his return to New Hampshire. He has attended AA on almost a daily basis and has been alcohol-free since May 20.

On the other hand, the Committee has considered the nature of Judge Jones' conduct while attending the State of New Hampshire Conference on Domestic and Sexual Violence, the circumstances under which it occurred, and has found the following:

Judge Jones was attending a statewide conference related to the issues of domestic violence and sexual assault. He was clearly there as a representative of the judiciary. During the day he had attended one or more seminars, one of which was presented by a woman who later became one of the victims of Judge Jones' conduct. During the course of a reception, an awards banquet, and a later period of socializing Judge Jones, by his own admission, consumed three or four Scotches and four or five glasses of wine. He was described by a number of people as intoxicated and by several as being loud and obnoxious. This conduct alone, given the circumstances, would amount to a substantial violation of the Code.

Judge Jones then proceeded, during the course of a half hour to forty-five minutes, to assault five women, four of them while on the dance floor, by touching their buttocks, and/or their breasts, several on more than one occasion. This occurred in a public place and was observed by others in the area.

Judge Jones claims not to recall having touched any of the women and points to his intoxication for his lack of recall. He readily admits, however, and the Committee so finds, that voluntary intoxication is in no way a defense for or in mitigation of his conduct that evening.

Given these facts the Committee finds that the conduct in question was egregious and without justification. Of particular concern to the Committee is Judge Jones' apparent unwillingness to acknowledge that what happened was not only assault but sexual assault. The Committee finds by clear and convincing evidence that the simple assault convictions were the result of Judge Jones engaging in inappropriate and unlawful sexual contact, using the usual and customary meaning of those words. What occurred that evening is more likely than any other type of conduct to call into question the integrity of the judiciary.

The Committee has considered the effect of this conduct on the women who were involved. All five were known to Judge Jones prior to the evening in question. Several of them appeared in his court on a fairly regular basis as advocates and/or resources for victims of sexual assault and domestic abuse. Judge Jones was held in high regard by his victims and was clearly in a position of power and authority over them. The Committee finds that in view of the conduct in question, Judge Jones cannot uphold the integrity and independence of the judiciary.

The Committee also has to consider the effect of this case on the general public. The public has the right to expect the highest standard of conduct from judges, as such conduct has a direct bearing on a judge's credibility and the public's confidence in the judiciary. Litigants and the public have a right to a court free from the shadow of unfitness. In re Mack Mussman, 113 N.H. 54 (1973). The New Hampshire Constitution specifically guarantees, in Part 1, Article 35, the right of our citizens to be tried by judges "as impartial as the lot of humanity will admit." The Committee has also seriously considered Judge Jones' own efforts at rehabilitation and the recommendations of the many attorneys who testified as to their beliefs that Judge Jones could learn from this experience and continue on in his service on the bench. Although it is unfortunate that this may have been one relatively brief lapse in Judge Jones' judgment and behavior, the Committee must consider that, in the words of the Preamble to the Code, "the role of the judiciary is central to the American concept of justice and the Rule of Law". "Even though a particular judge may believe that a particular action will not affect that judge's ability to decide legal matters impartially, it is the public's perception of that ability that is important." Snow's Case, 140 N.H. 618 (1996). The Committee believes that having engaged in the outrageous conduct in question, and having been convicted of five separate misdemeanors resulting from that conduct, Judge Jones has by his own actions demeaned his judicial office and cast reasonable doubt in the eyes of the public on his continuing capacity to act in an impartial manner.

In view of the above the Committee unanimously finds by clear and convincing evidence that Franklin C. Jones has violated Canon 1, Canon 2A, and Canon 4A(1)(2) and (3) of the Code of Judicial Conduct.

In light of these findings and in view of the considerations enumerated above, it is the Committee's unanimous recommendation that Franklin C. Jones be suspended indefinitely from all judicial duties, without pay, and that he not be considered for reinstatement at any time in the future. In making this recommendation the Committee understands this to be the highest level of discipline available to the Committee by way of recommendation to the court.

The Committee also recommends that Judge Jones be assessed the costs associated with this proceeding.

On the Requests for Findings of Fact and Rulings of Law submitted by Attorney Van Oot: 1-9 are granted; 10 is granted except as to the reference to Officer Pinardi; 11 is neither granted nor denied; 12-35 are granted.

As to the Request for Findings and Rulings submitted by Attorney Hilliard: 1-9 are granted; 10 is granted as follows: "J.L., aware that Judge Jones was intoxicated, offered to, and then did, purchase a round of drinks including an alcoholic drink for Judge Jones"; 11 and 12 are granted; 13 is granted with the exception that C.L. purchased Judge Jones another alcoholic drink "at his request"; 14 and 15 are granted; 16 is granted except that at the Committee hearing J.S. testified that during her initial statement she was attempting to minimize what had occurred but that within several days she did feel she had been violated by the contact; 17 is granted; 18 is granted and the Committee specifically finds that such contact occurred; 19 is granted; 20 and 21 are granted but only to the extent that this was Judge Jones' testimony at the hearing; 22-29 are granted; 30 and 31 are neither granted nor denied; 32-39 are granted; 40 is neither granted nor denied; 41 is granted; 42 is denied; 43-58 are granted; 59 and 60 are denied.

Zucker, Concurring Specially.

I fully concur with the report and unanimous recommendations of the full Judicial Conduct Committee. I concur specially because I believe the parties and the public have a right not only to a reasoned and appropriate decision, but to know, contemporaneously, that the process undertaken in reaching that decision was free of any bias or taint.

This Committee, as well as some individual members and participants, have come under fire from various individuals depicting the Committee as engaging in improper activity. They portray the hearing conducted by the Committee as a process affording special treatment for judges and predisposed to protecting one of their own. Nothing could be further from the truth.

While the majority of the Committee, in their sound discretion and with substantial precedent in support, decline to speak directly to this issue, I do so because I believe that individuals have mischaracterized its processes and activities, which when disseminated through the media, provide the public with a distorted view of what actually transpired.

At a time when the Committee has recommended that a Judge be subject to the ultimate sanction for misconduct to protect the integrity, impartiality and perception of the Judiciary, the public and the participants ought to know that the important authority delegated to it by the New Hampshire Supreme Court, was exercised in the most fair and impartial manner.

Reports that any Committee member had any contact with Judge Jones, either before, during or after the two days of public hearings is completely false. Individuals making such accusations are mistaken. Media reports that I and another member of the Committee were socializing with Judge Jones are likewise, entirely false. The truth is, we have never met, and have never spoken, ever.

The public and participants, under our constitutions, have the right to expect a proceeding before a tribunal that is as impartial and fair as is humanly possible, and that is what they have received. Our Vice-Chairman, on behalf of the Committee, issued a short statement, before the second day of hearings, that no such contact had occurred, and a letter from the attorneys for Judge Jones confirmed that no contact had taken place. At a time when the Committee is engaged in this most precious and solemn responsibility to adjudicate this matter on the merits, public confidence in both the process and its outcome is enhanced by an accurate account of the proceedings.

The Code of Judicial Conduct and procedural rules of the Committee are prescribed by court rule. It is within that context that hearing counsel was appointed by the Committee to act as a special prosecutor, independent of the Committee. Those same rules delineate the rights afforded to a sitting judge when a Statement of Formal Charges has been lodged against him, as well as the rights of those subject to the alleged improper conduct. While cognizant of the pain these proceedings likely caused to both the victims of the assaults and the respondent, the Committee, as it must, insured that all sides fully conformed to those mandates in the exercise of their rights. Attempts to characterize Committee procedures as unduly exacerbating the pain and hurt suffered by the victims is unfounded. These proceedings were necessary to comply with the requirements of due process and were fairly conducted.

Dated: January 26, 2005

Respectfully submitted,
Robert O. Wilson, D.D.S,
Vice Chair

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