The following information is offered to provide the public with a fundamental understanding of the history, function and activities of the Judicial Conduct Committee.
HISTORY OF THE JUDICIAL CONDUCT COMMITTEE
The State of New Hampshire's Judicial Conduct Committee has been in existence since 1977.
The Judicial Conduct Committee was created by rule of the Supreme Court and its powers and procedures were then, as they are today, governed by Supreme Court Rules 38, 39 and 40. The State of New Hampshire's Code of Judicial Conduct, which is codified in Supreme Court Rule 38, establishes the standards of conduct which judges must meet. The Committee is established by Rule 39, while Rule 40 sets out the procedural rules of the Committee.
Every state along with Washington DC has a similar committee, commission or board with the power to review complaints against judges and other judicial system personnel. This reflects the now universal recognition that judges and those performing judicial functions must be held accountable for their actions and that there must be a forum for handling complaints of misconduct.
In carrying out its responsibilities, the Judicial Conduct Committee helps to preserve the public's confidence in the judiciary and to safeguard the integrity of the judicial system. It is also important, of course, that the independence of judges not be compromised or chilled in the process, and the Judicial Conduct Committee strives to maintain the necessary balance between public accountability and judicial independence.
At its inception in 1977, the Judicial Conduct Committee was a committee of the New Hampshire Supreme Court. Early on, the New Hampshire Supreme Court appointed nine members of the Judicial Conduct Committee each having a term of four years. At that time four members were required to be judges representing each of New Hampshire's court systems. The Committee's members were initially comprised of: an active or retired justice of the Supreme Court; an active or retired judge of the Superior Court; an active or retired District Court judge; and an active or retired Probate Court judge. Two members must have been lawyers and members in good standing of the New Hampshire Bar Association, and the remaining three members were required to have been lay persons.
In 1985 the Judicial Conduct Committee became a member of the National Conference of Judicial Conduct Organizations. This body (NCJCO) was comprised of similar committees, commissions and boards from most of the other 50 states. Through participation in this organization, the Committee had the opportunity to meet members of other state committees and to gain greater insight into common instances of judicial misconduct as well as associated problems and how these issues were typically resolved. The National Conference provided the Committee with helpful written materials on proceedings, problems and solutions found in other states. The National Conference also sponsored conferences and seminars which were attended by members of the Judicial Conduct Committee or its staff who then reported back to the full Committee.
All 50 states along with Washington DC have some form of judicial conduct committee, commission or board, and each of them performs the same general function. Each state's committee, commission or board has been given the authority to investigate and prosecute all persons subject to the Code of Judicial Conduct.
In some states these judicial conduct committees are independent agencies, and in other states, as is the case here in New Hampshire, they are established by the judicial branch.
All judicial conduct committees today have public members. In seven states a majority of the members are neither judges nor lawyers. New Hampshire is one such state where six of the eleven committee members are lay persons.
In eight states all members are chosen by the state supreme court. In most of the other states public members are appointed by the governor, attorney members are appointed by the state bar association, the judge members are appointed by the supreme court.
In some states the legislature must approve appointments to the committee and in other states the legislature is itself an appointing authority.
In New Hampshire the membership of the Judicial Conduct Committee consists of eleven members and eleven alternate members who are appointed under Supreme Court Rule 39 (2) as follows:
- One member and one alternate member who is an active or retired justice of the superior court; one member and one alternate member who is an active or retired district court judge; and one member and one alternate member who is an active or retired probate court judge, all of whom are appointed by the Supreme Court.
- One member and one alternate member who is a Clerk of court or is a retired Clerk of court and who is appointed by the Supreme Court.
- One member and one alternate member who is a member of the New Hampshire Bar Association member and is appointed by the President of the New Hampshire Bar Association.
- One public member and one alternate public member who is not a judge, attorney, clerk of court, or elected or appointed public official, is appointed by the president of the New Hampshire Bar Association.
- One public member and one alternate public member who is not a judge, attorney, clerk of court, or elected or appointed public official, is appointed by the Supreme Court.
- Two public members and two alternate public members who are not judges attorneys, clerks of court, or elected or appointed public officials are appointed by the Governor.
- One public member and one alternate public member who is not a judge, clerk of court, or attorney, is appointed by the President of the Senate.
- One public member and one alternate public member who is not a judge, clerk of court, or attorney is appointed by the Speaker of the House.
All members are appointed for three year terms.
Without regard as to how or how long the members of any state's judicial conduct committee are appointed, the mission of all judicial conduct committees, commissions or boards is essentially the same. That mission is to:
- Investigate complaints about a judge's conduct;
- To determine whether a judge has committed misconduct or is somehow disabled;
- To assist judges who have committed minor ethical violations to change their behavior;
- To impose or recommend discipline, if appropriate, against a judge who violates the Code of Judicial Conduct as codified in Supreme Court Rule 38;
- And, when necessary, to secure the suspension or removal of a judge from office.
Beyond this, all judicial conduct committees function so as to maintain, and restore if necessary, the public's confidence in the competence, integrity, independence, and impartiality of judges and the judicial system.
All judicial conduct committees do this by:
- Enforcing standards of judicial conduct on and off the bench;
- Assisting the judiciary in maintaining the necessary balance between independence and accountability;
- Reassuring the public that the judiciary neither permits nor condones misconduct;
- Providing a forum for citizens' complaints against judges;
- Creating a greater public awareness of what constitutes proper and improper judicial conduct, and;
- Protecting judges from false, unfounded, and inaccurate accusations that can damage their reputations.
The Judicial Conduct Committee of today is a member of the American Judicature Society and the Association of Judicial Disciplinary Councils. These groups support the Committee throughout the year in various ways to include the provision of annual seminars, monthly newsletters and scholarly journals dedicated to issues of judicial ethics and discipline.
WHO IS SUBJECT TO THE CODE OF JUDICIAL CONDUCT
Under Supreme Court Rule 40 (2) the term "judge" is defined to include:
- all full-time or part-time judges of any state court or division;
- all full-time or part-time marital masters;
- referees or other masters; and,
- when performing an adjudicatory function, clerks of court or deputy clerks, including registers of probate or deputy registers, and any persons performing the duties of a clerk or register on an interim basis.
Not everyone who is a "judge" as defined herein is bound by every Canon of the Code of Judicial Conduct -- the Code of Judicial Conduct applies to a judge to the extent provided in Supreme Court Rule 38.
WHAT THE JUDICIAL CONDUCT COMMITTEE CAN AND CANNOT DO
The Judicial Conduct Committee has no jurisdiction over anyone not defined as a "judge" in the previous section. For example - lawyers, Guardians ad Litem, administrative law judges, federal judges, and justices of the peace are not subject to the Code of Judicial Conduct. A report against anyone not subject to the Code is either dismissed by the Committee or not even docketed by the Executive Secretary. However, when appropriate, a referral will be made to the appropriate authority, such as the Office of Attorney Discipline in the case of a report filed against a lawyer or to the Governor's office in the case of a report filed against someone whose position falls under the executive branch.
Some reports are dismissed because they do not allege a violation of the Code of Judicial Conduct. For example, if a litigant were to complain that a judge did not respond to the litigant's telephone call or letter, there would be no violation of the Code since a judge is required to ignore such ex parte communications.
A report would be dismissed as being beyond the jurisdiction of the Committee if it were in effect asking the Judicial Conduct Committee to act as an appellate court and review the merits of a judge's decision, claiming that the judge made an incorrect finding of fact, misapplied the law, or abused his or her discretion. A reporter may not circumvent the appellate process by filing a report with the Judicial Conduct Committee as a substitute for an appeal.
The Judicial Conduct Committee was not established to punish mistakes or to substitute its judgment for that of an appellate court which is constitutionally mandated to address such errors. The duty of the Committee is to address conduct which violates the Code of Judicial Conduct only.
Supreme Court Rule 39 (8) requires that or before March 1 of each year, the Committee prepare a report summarizing its activities during the previous calendar year. The annual report is filed with the Governor, the Senate President, the Speaker of the House, the Chief Justice of the Supreme Court, the Chairpersons of the House and Senate Judiciary Committees and is made available to the public on the Judicial Conduct Committee website.
PRODECURE FOR FILING A REPORT ALLEGING JUDICIAL MISCONDUCT
Please see publication entitled Report Procedure to determine how to file a report alleging judicial misconduct.