THE NEW, INDEPENDENT Judicial Conduct Commission created last year by the Legislature officially opened for business on Jan. 1. But the Supreme Court’s existing Judicial Conduct Committee continues to operate, as it has for over 25 years, meaning those wanting to file a complaint against a judge must choose between parallel systems of judicial discipline.

In 1973, New Hampshire was among the first states to adopt a code of judicial conduct, which had been approved just a few months earlier by the American Bar Association. "With that action, our state formally recognized that supervision over the conduct of judges is essential to sustain public confidence in the justice system. Today, almost 30 years later, the court’s commitment to that principle, enforced by the Judicial Conduct Committee, remains absolutely firm," wrote the court in a Jan. 23, 2001 press release.

In the wake of the impeachment last summer of NH Supreme Court Chief Justice David A. Brock, however, many raised concerns that the existing JCC was under the thumb of the Supreme Court: The court had sole authority to appoint members to the JCC, its staff members were court employees, and its offices were located in the Supreme Court building.

Both the court and the Legislature agreed that the process by which the conduct of judges is reviewed needed reform. During Brock’s impeachment, the court established a Task Force for the Renewal of Judicial Conduct Procedures, a group charged with looking at making the structure and internal procedures of the JCC independent from the court.

The task force’s final recommendation was to establish a new JCC independent from the court system and including members from all three branches of government. The staff, office space and funding of the new group were all to be independent of the courts.

Lawmakers approved legislation sponsored by Sen. Ned Gordon (R – Bristol) that created a Judicial Conduct Commission which incorporated many of the task force’s recommendations. But there are elements of the legislation that some feel push the envelope in terms of separation of powers under the NH Constitution; the new commission threatens the judicial branch’s right to govern itself, they believe. The separation of powers issue has surfaced frequently as of late as the legislative and judicial branches struggle over which has ultimate power over the courts: the courts’ own rules or laws approved by the Legislature.

Meanwhile, the Supreme Court developed its own version of an independent JCC, slightly different from that developed by lawmakers, which required funding from the Legislature. But the Legislature had no interest in funding a conduct panel that would parallel the one it had already created through legislation, said Donna Sytek, chair of the new Judicial Conduct Commission and former speaker of the House. Sytek also served on the Supreme Court’s Judicial Conduct Committee for a few years in the mid-90s.

Without funding for its new JCC, the Supreme Court’s existing conduct committee has been left in place. The court appears reluctant to turn over the discipline of judges to a body whose constitutionality the court seems to feel could be challenged on the basis of the separation of powers clause. In a letter appointing three judges to the Legislature’s new JCC (as requested), Chief Justice Brock wrote, "The Supreme Court recognizes that there may be challenges to this legislation. In making these appointments, the Supreme Court expresses no opinion on any legal issues relating to the legislation that might arise."

It appears as though the court is keeping its conduct committee in place in the event that the Legislature’s panel is challenged; any such challenge could tie up conduct matters if there were no other forum for complaints. So the court’s conduct committee continues to operate as it has for the last 25-plus years, having recently named several new appointees.

But members of the conduct commission, including Sytek, feel that the new JCC is both constitutional and appropriate. "We’re just following the law. This commission was created by the Legislature and the law creating it is constitutional until proven otherwise," said Sytek.

It was the belief of lawmakers that once legislation creating the new JCC was enacted, the Supreme Court’s conduct committee would be dissolved, said Sytek. "The idea was that the new commission created based on recommendations by the task force would replace the court committee that had existed for the past 20-plus years," said Sytek. "The expectation was that the old committee, which most agreed needed reform, would go away."

Instead, there are now parallel judicial conduct panels, which Sytek said she finds "unfortunate."

"It’s sad because it’ll be very confusing for the public. If someone goes to a court clerk to ask where he can file a complaint about a judge, which panel will the clerk point him to?" Sytek asked.

At press time, Laura Kiernan, the Supreme Court’s public information officer, said that the court had no official comment as yet on the dual conduct panels. She expected the court to issue some kind of statement after Jan. 1. She did say that with the parallel panels, complainants should bring their judicial conduct matters to whichever forum they deem appropriate.

"If people have concerns about a particular judge, they should bring their com plaint to the place of their choice. Clearly it’s up to the citizens to decide where to file their complaints. First and foremost, it’s in everyone’s interests to see those complaints addressed in the appropriate forum," Kiernan said.

Despite competition from the existing court committee, the new Judicial Conduct Commission presses forward. On Dec. 14, the commission held a hearing on and adopted a Code of Judicial Conduct that is "98 percent the same as" the conduct code adopted by the Supreme Court in Rule 38, according to Sytek. Some elements of the court’s code were modified, Sytek said. For example, the court’s conduct code prohibits a judge from running for public office, except as a moderator or delegate to the constitutional convention. The code adopted by the new JCC applies a more stringent rule, prohibiting judges from running for any public office. Those judges already serving as moderators or delegates will be grandfathered.

At press time, the commission was still looking for office space. Because the legislation creating the new JCC stressed the group’s independence, the JCC needs to find office space not affiliated with any branch of government. "We even hesitated to hold the hearing on our code of conduct in the Legislative Office Building," Sytek said. "We need to keep distance between us and any branch of government."

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