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Bar News - December 19, 2008


Tony McManus Discusses JCC Tenure

By:

Tony McManus with his class in Belgorod, Russia, during a recent teaching assignment.

Anthony A. (Tony) McManus, who recently stepped down from seven-and-a-half years as executive secretary of the Judicial Conduct Committee (JCC), says that talking to complainants is perhaps the most valuable function of the executive secretary.

McManus, 69, who spoke with Bar News about his tenure at the JCC, has been succeeded in this administrative post by Robert Mittelholzer, a Newmarket attorney (see page 14).

"The JCC deals with 50 to 60 cases a year; anyone can file a grievance," said McManus. "I feel that the Committee’s work is similar to that of an ombudsman—and as secretary, I have tried to educate some of the people who called, to help them understand the court system better. I was often able to satisfy a caller by explaining how things work. After all, probably half the calls come from people who have gone to court pro se."

When all is said and done, only about 15 percent of the filings meet the requirements to become actual cases. The complaints, McManus said, usually concern dissatisfaction with the outcome of a case—in other words, the complainant disagrees with the judge’s decision.

Beyond the grievance….

If a case does merit further investigation, before requesting a response from the judge who is the subject of the complaint, the Committee may ask the executive secretary to gather more information. This could include listening to a recording of the hearing(s) or procuring the transcript(s) and finding and talking with other witnesses who may have first-hand knowledge of the events.

Sometimes the Committee may initiate an inquiry into the conduct of a judge (or any other person under the Committee’s jurisdiction) based on public record, such as reports in the media or other reliable sources. Such inquiry, however, is dependent on the affirmative vote of six or more members of the committee.

The panel is composed of eleven members and for it to decide to bring formal charges against the person named in the complaint, seven "yes" votes are necessary.

"The thing we have to remember is that we are responsible to the public; we are not there to defend the judges," said McManus.

Occasionally the Committee might find no misconduct on the part of a judge, but only that the manner of the judge was off-putting to the complainant. "Sometimes I was able to talk with the judge about his or her manner and suggest things to help matters go more smoothly in future cases," said McManus.

When you know the accused….

Naturally it is not easy to bring charges against people you know or who are your friends, said McManus, speaking in particular of matters coming before the Committee regarding Judge Franklin P. Jones and Judge Patricia Coffey.

Judge Coffey came before the Committee on two matters and when she was initially accused, she was a member of the JCC. Because of this, McManus asked to have an alternate panel established. Such a move involved a rule change, but the request was granted and the rule was changed; now there is an alternate panel of 11 people and if a grievance is brought against anyone on the Committee, the case automatically goes to the alternate panel.

Events that changed Committee structure

It was the Justice Brock impeachment in 2000 which precipitated the hiring of McManus.

In 2000, Chief Justice David A. Brock was tried by the NH Senate on four articles of impeachment, but the Senate voted by a wide margin to acquit Justice Brock, who continued his tenure until his retirement in 2003.

Before the Brock impeachment, however, the Judicial Conduct Committee had been chosen by the Supreme Court and the clerk of the court, Howard Zibel, was the executive secretary. A strong feeling arose, both inside and outside the legal community, that the Committee was not separate enough from the Court.

Thus, in response to public opinion, the Judicial Conduct Committee became much more independent. "This resulted in an openness that has brought about an improved judiciary," said McManus.

Current structure of the Committee

Five of the Committee members are appointed by the Supreme Court, two are chosen by the governor, one by the NHBA, one by the speaker of the House, one by the president of the Senate and one lay person is chosen by the Court. At present, there are three judges on the Committee, one clerk and one lawyer. The other members are private citizens.

The Committee also has a separate budget and does not meet at the Supreme Court as it did in the past. The budget comes from the Administrative Office of the Courts (AOC) and the executive secretary is under contract for 30 hours a week to the AOC. "It usually amounts to more, but the contract is for 30," said McManus. The Committee itself is a completely volunteer effort.

All files are open to the public and after two years if there is no finding, the files are archived. The grievance and the judge’s response are both in the file. In fact, any response from a judge is public forever. McManus says New Hampshire is one of only two states with such open dealings in respect to public records.

Even so, in its ongoing effort to make the system the best, the Court has recently asked for a review of the current rules.

Helping in many ways

Before taking on the JCC assignment, McManus had practiced primarily in the Dover area, and was active in the leadership of the NH Bar Foundation, serving as its chair from 2000 to 2001. He was honored as an Honorary Foundation Fellow in 2007.

During his tenure on the JCC, McManus maintained a limited transactional practice and did not go to court. He will resume his practice more fully now.

McManus graduated from Boston College Law School and joined the NH Bar in 1963 and has served on the Board of Governors and on various committees. He also was instrumental in the founding of both New Hampshire Legal Assistance (NHLA) and the Legal Advice and Referral Center (LARC). He is a former member of the NH House and served on the House Judiciary for two terms.

Teaching in Russia

McManus did some teaching in the seacoast area some years ago, but more recently accepted a short term teaching assignment in Russia (working with a translator) under the auspices of the Center for International Legal Studies, headquartered in Salzburg. He was assigned to Belgorod, 20 miles from the Ukrainian border.

"It was great having an opportunity to compare the Russian legal system with our own," he says. "One major difference is that there are no juries for civil cases – and in criminal cases only with the approval of the judge. The judge sees all the documents beforehand and even questions the witnesses himself—and when there is no jury, the judge decides the outcome of the case."

McManus also visited Berlin, Dresden and St. Petersburg. "I was in Berlin in 1959 and about 80 percent of the city was in ruins. Now it has been beautifully rebuilt – even the trees on the side streets have been re-planted."

In Dresden, he says, the builders searched out the original plans for the buildings and rebuilt using those plans, so that much of the city has been restored to its former 17th and 18th century glory.

(Note: Supreme Court Rule 40, which governs the functioning of the Judicial Conduct Committee, may be found at www.courts.state.nh.us/rules/scr/scr-40.htm)

 

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