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Bar News - November 16, 2016

Opinion: Out of the ‘Ivory Tower’ and Onto Main Street


During my judicial confirmation hearing in 2011, at least two Executive Councilors implored me to remain engaged in my community. I vowed not to retreat into isolation. After all, I was not accepting a position as a monk or hermit in a cloistered religious order. At the time, I gave little thought to how the restrictions of a judicial post would impact me.

But as I have tried to remain true to my promise to those Executive Councilors the tension between civic participation and the need for judicial independence as imposed by the Code of Judicial Conduct has not been easy to navigate and difficult in ways I never imagined.

Welcome to “Bench Notes,” a new occasional column in the Bar News that looks at issues affecting the bar from a trial judge’s viewpoint. Many judges take notes during court to keep track of observations that may not be apparent from the transcript. Much like the judge’s bench book, this column will provide some candid insights into the judicial process that are not typically part of the public record. In this issue, I am going to address the intersection of judicial independence, which is critical to our justice system, and the sometimes collateral consequence of judicial isolation. Unless you have grappled on a daily basis with the practical realities of the strictures placed on judges, it is difficult to understand why judges sometimes opt for isolation from the broader community rather than negotiate the many intersections of the judicial and personal experience.

Yet, as I explain later, this retreat into an ever-smaller social circle can have negative consequences on the judicial process; if we become too removed from the wider community we lose touch with struggles and pressures experienced by the litigants we are asked to judge.

John Adams was one of the primary architects of the separation of powers in American political philosophy. In his view, an independent judiciary formed the cornerstone of the structure of a free government. He opined in the 1776 pamphlet Thoughts on Government:

“The Judges… should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or in other words their commissions should be during good behavior, and their salaries ascertained and established by law.”

The New Hampshire Constitution owes its direct heritage to John Adams’ concept on the frame of government. To further this laudable vision of judicial integrity, New Hampshire has also adopted the Code of Judicial Conduct, which is designed to prevent improper entanglements.

Prior to becoming a judge, I had spent most of my professional career at the Attorney General’s Office where we were prohibited from engaging in partisan politics but were otherwise free to maintain our social and civic connections. After my appointment to the bench, I remained active in my community, volunteering with my church, working at the local homeless shelter, teaching as an adjunct law professor, and serving on a municipal advisory panel to recommend improvements to Main Street. This mix of professional, social, and community interests had been easy to maintain until recently when I took on a leadership role at South Church in Concord.

In June, I was elected president of the church council, which is tasked with the governance of the congregation. I also serve on a subcommittee responsible for the maintenance and improvement of the church building and property. Acceptance of these positions appeared to have little risk of intersecting with the limitations imposed by the Code of Judicial Conduct. In fact, Canon 4(C)(3) explicitly allows a judge to serve as a director or officer of his or her religious organization.

Just a month after I assumed the presidency role, Concord Steam, which has provided heat to South Church and many other downtown business and charities for decades, announced it was shutting down. The church council was suddenly faced with the difficult challenge of funding the unbudgeted transition from Concord Steam to a new heat source. I knew I would need to take an active role helping the church work through this unexpected development.

As I began to explore our options, I received a call from Senator Dan Feltes. His district includes all of the churches, charities, and businesses affected by the shutdown of Concord Steam. He contacted me because he knew, as a church and one of the largest buildings in the downtown Concord, South Church would be particularly hard hit. He proposed submitting a petition to the Public Utilities Commission to establish financial relief from the sudden closure of Concord Steam and asked if South Church would be willing to spearhead an effort to rally other affected organizations. After taking the issue to the church leadership, South Church agreed to take on this responsibility.

As I launched into the work, I mulled the implications of signing a petition to the PUC. I had a nagging feeling that I had better check the Code of Conduct. Sure enough, Canon 4C states: “A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.” It was clear I could not the sign the petition on behalf of South Church even though in my position as council president and member of the property committee I was one of the congregation’s best positioned members to lead the church through this difficult transition. Suddenly the safe haven that allowed me to remain active in my community through my church took on a complicated new dimension. Of course my ethical obligation as a judge took priority over other commitments. But stepping aside, meant bringing someone else up to speed quickly and asking that person to appear before the PUC. Thankfully my fellow congregants are an understanding group.

The easy and tempting answer to this kind of difficult ethical dilemma is to avoid the conflicts at all cost by retreating into isolation. That approach, however, creates the risk that the judge will become disconnected from the real-world problems facing individuals who appear before the court. There is a difference between hearing about the tensions and pressures facing litigants in the antiseptic chamber of the courtroom and having ongoing practical experience with those issues.

If a judge’s social circle narrows to only family, close friends, and other colleagues on the bench, the judge risks being exposed only to an echo chamber of ideas and perspectives that do not represent the evolving experiences of the broader community. For these reasons, it is important for judges to remain active off the bench while at all times preserving the paramount goal of judicial integrity and independence.

Hopefully, sharing our observations and experiences in the Bar News as part of this regular “Judicial Perspectives” feature, can serve as one small way in which judges can get out of the “ivory tower” and out onto Main Street.

Hon. N. William Delker is the supervisory judge at Rockingham County Superior Court in Brentwood. He previously served as a senior assistant attorney general in New Hampshire.

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