THE STATE JUDICIARY'S attempts to mend itself progressed earlier this month with the release of a court-appointed task force's report calling for an entirely independent Judicial Conduct Commission -including its own staff and funding separate from the judicial branch.

The group, co-chaired by St. Anselm College President, Rev. Jonathan DeFelice and attorney Wilfred L. (Jack) Sanders, also proposed detailed revisions and added commentary to the Judicial Canons which govern judges' conduct. The group worked quickly, issuing its report only 100 days after it was formed with the mission of recommending how the Judicial Conduct Committee, currently a committee of the Supreme Court, could be re-established as an independent judicial discipline body.

The task force has not completed work on proposed rules and procedures for the Commission-which would include recommendations on how discipline would be imposed. Currently, the NH Supreme Court must act upon judicial discipline.

Elements of the task force's recommendations for reforms included the following:

• The 11-member Judicial Conduct Commission should be made up of individuals appointed by the Governor, Senate President, House Speaker, the Supreme Court, and the Bar Association-with a majority of the membership non-lawyers. (Currently the JCC is made up solely of Supreme Court appointees, and the court appoints the chair.
• The commission should have subpoena power, a separate staff and funding "should be authorized by the legislature from sources other than those appropriated for the judicial branch." Under rules revised late in 1999, the JCC had had its subpoena power removed.
• The commission's staffing should be independent of the court system. Under its present setup, the executive secretary of the JCC is Supreme Court Clerk Howard J. Zibel and the court provides all staff functions for the committee.
• The task force also recommended the creation of an ethics committee to provide informal advice to judges.

The report provides guidelines and rationale for the judicial conduct rules. For example, the task force added a preamble to the extensively revised Code of Judicial Conduct (known as the Canons) and commentary that provides examples for the application of the code.

"The Code of Judicial conduct is not intended as an exhaustive guide for the conduct of judges," the task force's proposed preamble said. "They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct."

Rules Seek to Combat Isolation

The proposed code does more than set limits, however: it more clearly delineating how judges can avoid the appearance of impropriety. "Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions," the report said in commentary to proposed Canon 2. "Judges should distinguish between proper and improper use of the prestige of the office in all of their activities."

Proposed language for Canon 4 covers judges' extra-judicial activities and contends that "a judge should not become isolated from the community in which the judge lives."

The commentary encourages participation in improvement activities regarding the judiciary and permits service as a trustee of non profit organizations, even those that engage in fundraising, as long as the judge does not participate in those activities. Sanders said that portion of the proposed code, drawn from an ABA Model Code of Judicial Conduct, would be "something new for New Hampshire. It doesn't make a lot of sense for judges to be totally isolated and removed from all community contact," he said.

To aid judges in sorting out questions about where and when to involve themselves, the task force recommended creation of a judicial ethics committee-separate from the commission-that would enable state judges to obtain informal advice from peers on where ethical lines might be crossed.

The report by the 20-member independent panel considered, among other sources, input from the American Judicature Society which outlines the composition of judicial boards in other states, and included participation by members of the public. It is meant to inform the Supreme Court, the executive and legislative branches of government, and the public at-large. "The ultimate goal is to increase the effectiveness of the judicial conduct system and enforce the integrity of the state's justice system," said DeFelice.

"The Task Force which Father DeFelice and I chair", said Attorney Sanders, "was no less aware than the Supreme Court, and the citizens of this state, that the impeachment trial in the Senate, and the events which led up to it, irrevocably changed the landscape and climate for judicial discipline in New Hampshire.

"And while we set out to make - and have made - recommendations in several key areas relating to judicial ethics and the enforcement process, we knew the first step would have to be to sever ties to the court system, even financial and administrative ties. No matter how much sense these ties made in the past, it was clear to us from the outset that the public trust in our court system could not be raised up and sustained so long as there was an appearance that the regulated parties had some influence over the regulations.

"Lastly," Attorney Sanders concluded, "it should be noted that the recommendations of our Task Force should not be viewed solely as reactions. They are, in fact, the culmination of a lot of labor by people in and out of the judicial system, over a number of years, working to keep the institution responsive to society's changing needs. Our US Supreme Court recently come under bright lights for its role in deciding the presidential election. In Washington, as in Concord, the justices have not changed - their integrity has not diminished - so much as the world of business, political and even family life around us all has changed. We hope the work of our Task Force is seen in the same light; that it is not reactionary or revolutionary but evolutionary, and necessary to the health of our system of justice."

Click here to read the entire report.

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