Bar News - September 14, 2012
Opinion: Who’s Judging New Hampshire’s Judges? Conduct committee takes job seriously
By: Dr. Robert O. Wilson
This article was first published in The Concord Monitor on Aug. 26, 2012, and is reprinted with permission.
As chairman of the New Hampshire Judicial Conduct Committee, it does not surprise me that there is public confusion over the role of the House Committee for Redress of Grievances as it may relate to judicial matters.
The New Hampshire Constitution, while establishing the three branches of government - executive, legislative, and judicial - heavily weighted the scope of governance to the side of the Legislature. It established two articles for the purpose of accountability for "the wrongs that the people suffer" at the hands of government.
Dormant for many years, the Committee for Redress of Grievances was re-established in 2011. Many of its hearings have dealt with citizens unhappy with judicial decisions and the judiciary in general. Sometimes, with the encouragement of legislators, aggrieved former litigants tell their story to the committee, but the committee goes no further to investigate a claim of judicial malfeasance. In some instances, the committee votes overwhelmingly in favor of the grievant and threatens to bring a bill to the House to impeach the judge.
I find this disturbing, because the public hears only one side of what is often a complex and emotionally charged story.
A long history
The Judicial Conduct Committee was established more than 35 years ago as an independent, lay-dominated body charged with investigating complaints against judicial officers and, where appropriate, imposing or recommending discipline for misconduct as defined by the Code of Judicial Conduct.
In 2006, the appointing bodies were changed so that the Speaker of the House and the Senate President each appoint one lay member; the Governor appoints two lay members; the New Hampshire Bar Association appoints two members, one of whom must be a lay person; and the Supreme Court appoints five members: one representing each of the three lower courts, a clerk of court and one lay member. There is also an alternate panel, which hears cases involving a member of the standing committee.
Every state has a similar committee to handle complaints of judicial misconduct using a code of judicial conduct. The New Hampshire code was developed over many years to define how judges, masters, clerks and court reporters will conduct themselves to assure the public that it can feel confident cases will be judged fairly.
The JCC meets at least monthly and, after a thorough investigation of a report of misconduct, will either dismiss the report or carry the matter forward.
Should the committee find that a judge, master, clerk, etc., violated the code, it will determine an appropriate sanction, even so far as recommending suspension to the Supreme Court. But the JCC cannot overturn a judicial decision. That remedy is accorded only to an appellate court, which in New Hampshire is the state Supreme Court.
It is not uncommon for someone reporting what he or she believes to be judicial misconduct - often submitting 20 to 100 pages or more, photographs, and recordings to document their report - only to learn that the committee did not agree and cannot change the ruling or substitute another judge to hear their case.
If litigants report to the JCC that a judge yelled at them, or was biased in some way, was rude or demeaned their testimony or didn’t follow the law, the JCC may ask its executive secretary to obtain the sound recording of the trial and/or the transcript for the members to hear and read for themselves.
If the committee votes to move to the next stage of inquiry - a complaint - it will ask for a response from the judge, master, clerk, etc. Should the committee be dissatisfied with the response, it can conduct an additional investigation, leading to the filing of a statement of formal charges and a public hearing, should there be clear and convincing evidence of judicial misconduct. Reaching that level is rare - perhaps once or twice a year out of 80 or 90 reports of judicial misconduct.
In line with the country
There is a national clearinghouse that monitors decisions by judicial conduct committees, so we in New Hampshire can follow trends and statistics. Our 85 percent rate of dismissal of initial reports follows national results.
A trend nationally and in New Hampshire is that litigants are appearing pro se before a judge or master (in other words, without a lawyer to assist them), all too often for marital and child custody cases that are emotionally charged.
Not understanding court procedure and how evidence should be presented is often an insurmountable barrier. Litigants can feel disadvantaged, even when the judge goes out of his or her way to help them through their presentation.
I hope this clarifies the distinction between the Legislature’s Committee for the Redress of Grievances and the Judicial Conduct Committee. The JCC is governed by Supreme Court Rules 38, 39, and 40. It cannot change a judicial decision. The highest level of sanction for judicial misconduct is to recommend to the Supreme Court suspension from the court system. The Supreme Court has that power, but not the power to dismiss a judge from office. Only the Legislature has that power: to impeach, convict and remove.
There will always be a certain level of tension between the three branches of government as evidenced by comments from the Redress of Grievances Committee chairman and the Attorney General. But we cannot forget that our system of governance is based upon the rule of law, and the public must be assured that the administration of justice is monitored independently and diligently. The JCC takes that responsibility with the utmost seriousness, evaluating every single report with respect and thorough consideration.
Dr. Robert O. Wilson of Hopkinton chairs the NH Judicial Conduct Committee.
Judicial Conduct Committee official website.