This public statement is issued in conjunction with our resignations from the New Hampshire Supreme Court’s Committee on Judicial Conduct (JCC). We have resigned from the committee because the system of judicial oversight now in place is about to come to an end, and we wish to make way for fresh minds and points of view.

We also want to speak freely, as ordinary citizens, about some of the issues and events relating to the JCC and to the Supreme Court and its leadership that have been discussed publicly in the last two years.

We want to make clear, first, that during our service on the committee (Hodges since 1990, with service as chairman for the last two years, Newsom since 1994), our experience and observations have convinced us that the New Hampshire judiciary respects and strives diligently to abide by the state’s Code of Judicial Conduct. We are proud, too – as "public members" with no ties or obligations to judges or anyone else in the court system – of the JCC’s role in monitoring the judiciary’s adherence to that code.

In that connection, we have observed that the role of the JCC in recent events involving the New Hampshire Supreme Court has been widely misrepresented and, we have to believe, seriously misunderstood. Partly as a result, and due also to the impeachment proceedings in the Legislature last year (in spite of the fact that these concluded with lopsided votes for acquittal), the conduct of court members, especially its leadership, has been continuously and publicly criticized.

New Hampshire citizens should be aware of the following:

• All of the JCC’s actions in the last two years regarding the chief justice and other Supreme Court members were the result of the self-policing functioning of the judicial system itself. This started with a self-report to the JCC by Justice W. Stephen Thayer III of his failure to comply with financial disclosure requirements, a step he was urged to take by his fellow justices, as was revealed in recent investigations.
• Additional potential code violations were reported, first in a letter to the JCC by three members of the Supreme Court itself, and subsequently in a letter to the JCC by the clerk of the New Hampshire Supreme Court.
• Since potential violations of the law were also involved, the JCC turned over these reports to the attorney general, who used them as a springboard for his own investigation – as did, ultimately, the New Hampshire House and Senate.
• Justice Thayer resigned his position and was not prosecuted. The JCC continued its investigation of him, however, despite his legal challenge, and ultimately he publicly acknowledged actual and potential code violations.
• In contrast with the Legislature’s impeachment of the chief justice, which resulted in an overwhelming vote for acquittal, the result of the JCC’s own inquiry was that, apparently on the advice of two of his court colleagues, the chief justice accepted a public admonishment.
• It should be noted that the chief justice never received a public hearing on these charges, although there is some evidence that he wished to proceed to such a hearing, media reports to the contrary. At the urging of two of his colleagues, he agreed, instead, to accept the JCC’s findings and thus to avoid the spectacle of a public hearing, doubtless in part because of fears that reporting on the hearing would tend to be sensational and would only serve the interests of court critics.
• Thus, reports in the media that the JCC had yielded to pressure in its action regarding the chief justice was exactly opposite to what actually happened: Clearly with some reluctance, the chief justice yielded to pressure, not the JCC.

Due in large part, therefore, to the internal functioning of the judicial disciplinary system itself, one member of the Supreme Court resigned his position and was publicly chastised, and the chief justice accepted an unprecedented disciplinary admonishment, administered to him by the court’s own watchdog, the JCC. The system, in fact, worked.

Much has been said and written in recent months about the JCC’s rules of confidentiality, often with the implication that the committee has a preference for doing its work "in secrecy." Since Americans live in an open society, where legislatures and courtrooms tend to be accessible to the public, we are all naturally suspicious of proceedings that are confidential – especially when they involve the functioning of public institutions.

And yet it is clear, on reflection, that confidentiality is sometimes necessary – certainly when constitutional rights of due process are at risk. The JCC’s rules of confidentiality were put in place to protect the due process rights of judges while the validity of complaints against them is investigated. Such complaints often reflect the fact that they are filed by angry litigants who have lost difficult court battles, or by inmates who don’t think they belong in prison – both groups convinced that the judges must be biased or otherwise deeply flawed.

As the judges’ rights of due process have thus been protected, the rights of complainants have also been protected – and the filing of complaints encouraged – by suspending the laws of libel. Under JCC rules, complaints filed with the committee, no matter how inflammatory, may not form the basis of libel suits.

While the press and the public can become frustrated and suspicious as a result of such confidentiality rules, it should be noted that these rules are comparable to similar restrictions that apply to ethical investigations in the Legislature and in professional associations of physicians and attorneys. In the case of the JCC, such rules are needed not only to protect judges from slanderous charges by complainants, but also to protect the integrity of investigations and the privacy of witnesses. The rules also encourage a free exchange of opinions among JCC members, who can be assured that their comments during committee deliberations will not be subject to outside pressures, political or otherwise.

We have been surprised to discover, as laymen, that this concept has been so difficult for outsiders to comprehend – including legislators whose own ethics committees impose similar rules of confidentiality.

In any case, as a result of the difficult experiences of the Supreme Court and the Judicial Conduct Committee in the last year or two, changes have taken place that have already improved the functioning of the court system as a whole:

• Procedures within the Supreme Court have been tightened with respect to recused judges – including their complete removal from any contact with materials or discussions on cases from which they have been disqualified.
• Procedures for the selection of judicial nominees have been strengthened and broadened, to help provide the governor with a list of the most qualified candidates for judgeships.
• It now seems clear that the Judicial Conduct Committee itself will be established as an independent commission, no longer a part of the court, and members will be selected by all three branches of the state’s government. (The undersigned have been among those recommending such a change – in our case in a memorandum delivered to the Supreme Court in August 2000. We were concerned not with the integrity or the effective performance of the current committee, but with the appearance of too close a connection between the committee and the court. We also felt that an independent JCC could expect to receive much-needed increases in budget, staff and office resources. The Task Force formed as a result of that memorandum, whose recommendations included the proposed new commission, was co-chaired by a member of the present JCC and included a number of present and former members.)

Some interesting facts about New Hampshire’s court system and the present Judicial Conduct Committee:

• In the year 2000, New Hampshire’s judicial branch handled more than 219,000 case filings in its four court systems – superior, district, family and probate. This represented an increase of more than 4 percent over 1999 and 6 percent over 1998.
• The current budget that enables the judicial branch to handle this growing caseload equals just 1.6 percent of the total annual appropriation for state government.
• Roughly 80 percent of the complaints or grievances that are considered by the JCC are dismissed because they are simply objecting to a judge’s decision or ruling, and not because of alleged violations of the Code of Judicial Conduct (the dismissal rate in other states is reportedly even higher).

The significance of these numbers suggests to us that the people of New Hampshire should be given even more access to information about the operation of their court system than is presently the case – especially relating to the burdens that are placed on the judiciary as a result of modem social trends. These include citizens’ increasingly frequent resort to the court system for dispute resolution, often of domestic or marital problems. We urge any new Judicial Conduct Commission to consider such a public educational effort as part of its mandate.

We conclude this memorandum with three additional observations.

First, we strongly urge New Hampshire’s citizens to recognize the vital importance of an independent judiciary in American life. As Justice Broderick recently said, "An independent judiciary forged many of the rights we take for granted in present-day America." As he also noted, while many judicial decisions were not entirely popular, "they have changed the face of our state and nation and often fulfilled our promise as a free and democratic people."

Second, we endorse the conclusions of the new state Bar Association president, Peter Hutchins, who observed in his June 23 inauguration speech that the state’s justice system has been subjected to "unfair and exaggerated" criticism. "It is critical," he noted, "that the public has confidence in the judicial system…where their legal disputes will be heard fairly, objectively and with strict adherence to their fundamental constitutional rights."

And third, although the present JCC will eventually be replaced by an independent commission, we can testify that our fellow public members, who have included leaders from the legislative and executive branches, and our lawyer and judge colleagues have all devoted considerable energies and talents to this difficult task. They have performed their vital public function with quiet distinction, extraordinary dedication and, their fellow citizens can be assured, with independent minds.

David A. Hodges, Sr.
John R. Newsom

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