THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R


Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A(7), the Supreme Court of New Hampshire approves, effective April 1, 2000, amendments to Supreme Court Rule 39, dealing with the Committee on Judicial Conduct, and Supreme Court Rule 40, dealing with Procedural Rules of the Committee on Judicial Conduct, such that the current Supreme Court Rule 39 and Supreme Court Rule 40 shall be deleted as of that date and the following rules shall be substituted therefor. In implementing new Supreme Court Rule 39(3), the court may initially appoint members of the Committee on Judicial Conduct for terms of less than three years to allow for the expiration of approximately one-third of the terms of the members of the committee in each year.

 

RULE 39. COMMITTEE ON JUDICIAL CONDUCT

(1) Authority

Pursuant to the supreme court's constitutional and statutory authority, and to provide for the orderly and efficient administration of the Code of Judicial Conduct, Rule 38 of the Rules of the Supreme Court, there is hereby established a committee on judicial conduct.

(2) Appointment of Committee

(a) The committee on judicial conduct shall consist of eleven members appointed by the supreme court. One member shall be an active or retired justice of the supreme court; one an active or retired justice of the superior court; one a district court judge; one a probate court judge; two New Hampshire Bar Association members; and five citizens not of the bar or bench.

(b) Committee Address

The committee address shall be:

New Hampshire Supreme Court Committee on Judicial Conduct

Frank Rowe Kenison Supreme Court Building

P.O. Box 1476

Concord, New Hampshire 03301-1476

(3) Terms of Office

The term of each member appointed or reappointed after April 1, 2000, shall be three (3) years, and a member may serve a maximum of three successive terms commencing after that date.

(4) Vacancy and Disqualification

(a) A vacancy in the office of the committee shall occur

(1) when a member ceases to be a member of the committee; or

(2) when a judge who is a member of the committee ceases to hold the office which he or she held at the time of selection; or

(3) when a lawyer ceases to be admitted to practice in the courts of this State, becomes an inactive member of the bar, or is appointed to a judicial office; or

(4) when a citizen appointee becomes a lawyer or a judge; or

(5) when a member ceases to be domiciled in New Hampshire.

(b) A vacancy shall be filled by selection of a successor with the same qualifications as those required for the selection of his or her predecessor in office. A member selected to fill a vacancy shall hold office for the unexpired term of his or her predecessor.

(c) A member may resign by submitting his or her resignation to the supreme court.

(d) No member may participate in any proceedings before the committee involving his or her own conduct.

(e) No member of the committee shall participate in any proceeding in which his or her impartiality might reasonably be questioned.

(f) Whenever a member is disqualified from participating in a particular proceeding, or is unable to participate by reason of prolonged absence or physical or mental incapacity, the court, upon written request of the chair, may appoint an alternate to participate in any such proceeding or for the period of any such disability, any such alternate to have the same qualifications as those required for the selection of the member who is being replaced.

(5) Expenses of the Committee and Staff

(a) The expenses shall be paid from appropriations of funds, if any are available, to the committee on judicial conduct through the supreme court budget.

(b) Members shall serve without compensation for their services, but shall be reimbursed for necessary expenses incurred in the performance of their duties, subject to the availability of funds.

(c) The supreme court shall appoint an executive secretary and such other persons as may be necessary to assist the committee in its work. The executive secretary shall perform the duties and responsibilities prescribed by this rule and Supreme Court Rule 40, and such other duties and responsibilities as the committee may determine from time to time. He or she shall receive all grievances, information, and inquiries, and process the same under the direction and supervision of the committee. The executive secretary shall maintain the committee's records, maintain statistics concerning the operation of the committee, and prepare an annual report of the committee's activities for presentation to the committee. He or she shall coordinate investigations ordered by the committee, and ensure that they are conducted discreetly and with dispatch. Subject to the direction and control of the committee, and subject to the availability of appropriated funds through the supreme court's budget, the executive secretary shall have charge of the disbursement of expense funds. Generally, the executive secretary shall supervise the work of other personnel employed by the committee, direct the activities of the committee's office, and endeavor to keep members of the committee properly informed about its business.

(d) Subject to the availability of funds, the committee may employ counsel. The duties of counsel shall be determined by the committee.

(e) Subject to the availability of funds, the committee may employ such private investigators, experts and other personnel as the committee in its discretion deems necessary for the efficient discharge of its duties.

(6) Quorum and Chair

(a) A quorum for the transaction of business by the committee shall be seven members. Except as otherwise provided in this rule or in Supreme Court Rule 40, no act of the committee shall be valid unless concurred in by seven of its members.

Members of the committee may participate in a meeting of the committee by means of a conference telephone or similar communications equipment, provided all persons participating in the meeting can hear each other. Participation by these means shall constitute presence in person at a meeting. These procedures shall not be used for hearings.

(b) If a quorum of the committee cannot be obtained by reason of the disqualification or absence of members thereof, the chair or the executive secretary shall request the supreme court to designate a temporary replacement or replacements. Any such temporary replacement shall have the same qualifications as the member replaced.

(c) The supreme court, after consultation with the committee, shall designate the chair and vice-chair of the committee. The vice-chair shall act as chair in the absence of the chair. In the absence of both the chair and the vice-chair, the members present may select one among them to act as temporary chair.

(7) Meetings of the Committee

(a) Meetings of the committee shall be held at the call of the chair, the vice-chair, or the executive secretary or at the written request of three members of the committee.

(b) The committee may, by vote, establish regular or stated meeting dates.

(c) The business of the committee may be transacted by telephone, exchange of correspondence, or other informal poll of members, unless one or more members object; provided, however, that no formal charges shall be instituted or regular investigation ordered or unfavorable action taken against a judge except upon deliberation and the affirmative vote of at least seven members who are physically present at a meeting of the committee.

(8) Annual Report

On or before December 31 of each year, the committee shall prepare a report summarizing its activities during the preceding year. Upon approval by the committee, a copy of this report shall be filed with the chief justice of the supreme court. Copies may be made available to the public upon the approval of the supreme court.

(9) Powers and Duties of the Committee

The committee shall have the power and the duty:

(a) to consider and investigate the conduct of any judge, as that term is defined in Rule 40(2), within the jurisdiction of this court and may initiate an inquiry on its own motion in accordance with Rule 40(6) or undertake an investigation upon grievance or complaint filed by any person;

(b) to appoint counsel as may from time to time be required to properly perform the functions prescribed by the committee, subject to the availability of appropriated funds;

(c) to appoint such investigative and other personnel as the committee shall deem necessary, subject to the availability of appropriated funds;

(d) to dismiss a grievance or complaint when the grievant lacks standing, the committee lacks jurisdiction over the grievance or complaint, the grievance or complaint is insufficient or there is insufficient cause to proceed, or the period of limitations set forth in Rule 40(4)(c) has expired;

(e) to dispose of a grievance or complaint by informal resolution or adjustment prior to the filing of formal charges or after a hearing on formal charges;

(f) to prepare and file a statement of formal charges when appropriate;

(g) to hold a public hearing on a statement of formal charges, during which hearing counsel shall have the burden of establishing by clear and convincing evidence a violation of the Code of Judicial Conduct;

(h) to institute disciplinary proceedings in this court when appropriate;

(i) to educate the public on the general functions and procedures of the Committee.


RULE 40. PROCEDURAL RULES OF COMMITTEE ON JUDICIAL CONDUCT

(1) Applicability.

All proceedings of the committee on judicial conduct, created by Supreme Court Rule 39, shall be governed by these rules.

(2) Definitions.

As used herein, the following terms shall have the following meanings:

Answer - The response filed by a judge to a complaint or statement of formal charges.

Code of Judicial Conduct - The Code of Judicial Conduct, as adopted by the New Hampshire Supreme Court in Rule 38, as the same may from time to time be amended.

Committee Counsel - Counsel engaged by the committee to assist it prior to the filing of formal charges.

Committee - The New Hampshire Supreme Court Committee on Judicial Conduct.

Committee Chair - The chair of the committee, or, in the absence of the chair, the vice-chair of the committee.

Complaint - A grievance that is docketed by the committee after being reviewed and determined to be against a judge and to satisfy the requirements for docketing as a complaint as set forth in section (5)(c), or a complaint which is drafted and docketed by the committee in accordance with section (7)(b) after a committee-initiated inquiry.

Court - The New Hampshire Supreme Court.

Discipline - Any disciplinary action authorized by this rule in a matter in which misconduct in violation of the Code of Judicial Conduct is found to warrant disciplinary action.

Grievance - A written allegation of misconduct against a judge, which is filed with the committee.

Grievant - A person who communicates a grievance to the committee.

Hearing - The proceedings which follow a statement of formal charges.

Hearing counsel - Counsel engaged by the committee to prosecute formal charges before the committee or disciplinary proceedings in this court. A lawyer who has served as committee counsel in connection with a matter may, in appropriate circumstances and in the committee's discretion, be engaged to serve as hearing counsel. Hearing counsel, after being appointed as such, shall have no ex parte communications with the committee.

Informal resolution or adjustment - Discipline imposed by the committee when the committee determines that the judge has violated the Code of Judicial Conduct, but that the violation is not of a sufficiently serious nature to warrant the imposition of formal discipline by the court. Informal resolution may include admonishment of the judge, issuance of a reprimand, requiring corrective action, directing professional counseling or assistance, imposing conditions on the judge's conduct, or other similar remedies.

Inquiry - A preliminary investigation of a matter begun by the committee on it own initiative to determine whether a complaint should be docketed.

Investigation - Fact gathering by or under the direction of the committee with respect to alleged misconduct.

Investigator - Any person designated by the committee to assist it in the investigation of alleged misconduct.

Judge - This term includes: (1) a full-time or part-time judge of the supreme, superior, district, and probate courts; (2) a full-time marital master; (3) a referee or other master insofar as grievances arise under canons 1, 2, and 3 of the Code of Judicial Conduct; (4) a court stenographer or reporter, a clerk of court or deputy clerk, including a register of probate or deputy register, and any person performing the duties of a clerk or register, with respect to canons 1, 2, 3A(1)-(3) and (5)-(7), and 3B of the Code of Judicial Conduct.

Misconduct - Conduct on the part of a judge that is contrary to the Code of Judicial Conduct.

Proceeding - Each step taken or which may be taken under these rules with respect to a grievance filed with the committee alleging misconduct of a judge, or with respect to an inquiry concerning the conduct of a judge which the committee has initiated on its own motion.

Rule - The provisions of Supreme Court Rule 40.

Statement of Formal Charges - A formal pleading served under section (9) of this rule by the committee.

Suspension - The temporary prohibition of a judge from exercising judicial authority for the period of time specified by the court. A suspended judge shall have the right to resume the exercise of judicial authority, after the expiration of the suspension period, upon compliance with all of the terms and conditions set forth in the suspension order promulgated by the court. As a term of suspension, the court may order that the judge's salary be suspended.

Warning - Non-disciplinary action taken by the committee when it is believed that a judge acted in a manner which involved behavior requiring attention although not constituting clear violation of the Code of Judicial Conduct warranting disciplinary action.

(3) Confidentiality of Proceedings.

Applicability Note: Section 3 shall apply to records and proceedings in all matters initiated on or after April 1, 2000.

(a) Except as provided in this section, all proceedings before the committee, and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. No member of the committee or its staff and no employee of the committee shall disclose such proceedings, information, communications, materials, papers, files, or transcripts, except in the course of official duty and as otherwise authorized in this section.

(b) Grievance Not against a Judge or Not Satisfying Requirements for a Complaint.

(1) In accordance with section (5)(d), a grievance against a person who is not subject to the Code of Judicial Conduct shall be dismissed and returned to the grievant with a letter explaining the reason for the dismissal. The person who is the subject of the grievance shall not be notified of it. No file on the grievance will be maintained; however, the committee shall retain a copy of the letter to the grievant returning the grievance, which shall be available for public inspection in accordance with section (16)(a).

(2) In accordance with section (5)(d), a grievance that fails to comply with the requirements for docketing as a complaint shall be dismissed. All records and materials relating to such a grievance shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with section (16)(b) after correspondence is sent to the judge who is the subject of the grievance and that judge has the opportunity to provide a reply to be filed in the public record in accordance with section (5)(d)(2). The judge's reply shall be filed in the public record.

(c) Grievance Docketed As A Complaint. All records and proceedings relating to a grievance which is docketed by the committee as a complaint after it has been determined by the committee that the grievance is against a judge and satisfies the requirements for docketing as a complaint shall be available for public inspection (other than work product, internal memoranda, and deliberations) upon the earliest of the following:

(1) Upon preparation and filing of a statement of formal charges, the committee's file (other than work product, internal memoranda, and deliberations), the hearing, and the committee's disposition shall be public. The committee's deliberations shall be confidential.

(2) If a matter against a judge is disposed of by informal resolution or adjustment, the committee shall inform the grievant of such disposition, and the committee's file (other than work product, internal memoranda, and deliberations), including the committee's disposition, shall be public. If the judge shall thereby have received three or more informal dispositions during the preceding five years, including informal dispositions heretofore confidential under section (3-a)(h), the following also shall be, after notice to the judge, available to the public: the prior complaints or notices of inquiry, the judge's responses, and the committee's findings and dispositions in all of the prior proceedings.

(3) If the committee, at any stage of a proceeding, dismisses a complaint after it has been docketed or dismisses formal charges, the committee shall inform the grievant of such disposition, and the committee's file (other than work product, internal memoranda, and deliberations) including the committee's disposition, shall be public. If the judge has not previously been notified of the complaint, the committee's file shall be made available for public inspection after correspondence is sent to the judge who is the subject of the complaint and that judge has the opportunity to provide a reply to be filed in the public record. In addition, the committee may, at the request or with the consent of the judge concerned, issue a short explanatory statement to the public.

(d) If a judge is publicly charged, through independent sources, with involvement in a proceeding before the committee, or publicly charged with conduct likely to become the subject of such a proceeding, the committee may, at the request or with the consent of the judge involved, issue brief public statements as it deems appropriate in order to confirm or deny the pendency of the proceeding, to clarify the procedural aspects thereof, to explain the right of the judge to a fair hearing without prejudgment, and to state that the judge denies the allegations.

(e) If the pendency of a proceeding before the committee is generally known to the public, through independent sources, and the subject matter thereof is of broad public interest or speculation, and public confidence in the administration of justice may be threatened because of lack of information concerning the status of the proceeding and the requirements of due process, the committee may, after consultation with the chief justice or the senior associate justice of the supreme court, issue brief statements as it may deem appropriate in order to confirm the existence of the investigation, to clarify the procedural aspects of the proceeding, to explain that the judge is entitled to due process, and to state that the judge denies the allegations.

(f) Protective order. Any person or entity may request from the committee, or the committee may issue on its own initiative, a protective order prohibiting the disclosure of confidential, malicious, personal, or privileged information or materials submitted in bad faith, and directing that the proceedings be so conducted as to implement the order. Upon the filing of a request for a protective order, the information or material that is the subject of the request shall be sealed pending a decision by the committee. The committee shall act upon the request within a reasonable time. Within 30 days of the committee's decision on a request for protective order, or of the committee's issuance of one on its own initiative, an aggrieved person or entity may request that the court review the matter. The material in question shall remain confidential after the committee has acted upon the request for protective order until such time as the supreme court has acted, or the period for seeking supreme court review has expired. A motion for review of the committee's decision on a request for protective order shall be filed as a confidential matter in the supreme court.

(g) This section shall not be construed to prohibit the committee from preparing and releasing to the public materials which are not related to any particular proceeding or situation. Such materials may include explanations of:

(1) The jurisdiction of the committee and the limitations upon its powers and authority;

(2) The procedure for filing grievances; and

(3) The internal procedures of the committee.

In addition, the committee may release periodic statistical reports of its work.

(h) Nothing herein shall prevent the committee from responding to unjustified public criticism of a judge who is not the subject of a proceeding, and the committee may so respond in appropriate cases.

(i) Any violation of these provisions relating to the duty of confidentiality imposed by this rule may result in action of the committee at the request of the non-violating party or on its own motion. That action may consist of opening the file and the proceedings earlier than would have been the case under section (3), terminating the proceedings with or without public comment, or such other action as the committee deems appropriate in the circumstances. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the chief justice or the senior associate justice of the supreme court of the matter.

Supreme Court Comment - 2000 amendment.

"One of the protections of the confidentiality provision is that a grievant is not liable for good faith statements contained in a grievance or made in the course of proceedings.

"Nothing in the rule of confidentiality prevents a grievant from disclosing publicly the conduct of a judge which he or she believes violates the Code of Judicial Conduct or is otherwise inappropriate. The immunity from civil liability does not apply to such disclosures. The rule does prohibit a grievant, however, from disclosing publicly the fact that a grievance against the judge about the conduct has been filed with the committee until a statement of formal charges is prepared and filed as described in section 9(a) of this rule, a grievance that had been docketed as a complaint is disposed of by informal resolution or adjustment or is dismissed, or a grievance that has not been docketed as a complaint is disposed of by the committee.

"Once a grievance or complaint has been disposed of by the committee, a grievant may make a public disclosure concerning the filing of a grievance including the conduct complained of and the action of the committee, and the committee's file, with the exception of work product, internal memoranda, and deliberations, shall be public."

(3-a) Confidentiality of Proceedings.

Applicability Note: Section 3-a shall not apply to records and proceedings in matters initiated on or after April 1, 2000.

(a) Except as provided in this section, all proceedings before the committee, and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. No member of the committee or its staff and no employee of the committee shall disclose such proceedings, information, communications, materials, papers, files, or transcripts, except in the course of official duty and as otherwise authorized in this section.

(b) A complainant shall keep confidential the fact that a complaint has been filed with the committee until either the complaint is dismissed, a statement of formal charges is prepared and filed as described in section 9(a) of this rule, or the complainant is notified that the committee has disposed of the complaint by taking appropriate remedial action as described in subsection (h) of this section.

(c) Upon preparation and filing of a statement of formal charges, the complaint or notice of inquiry, the judge's response, the statement of formal charges, all pleadings filed thereafter, the hearing, and the committee's disposition shall be public. The committee's deliberations shall be confidential.

(d) If a matter against a judge is disposed of by informal resolution or adjustment, and if the judge shall thereby have received three or more informal dispositions during the preceding five years, the following shall be, after notice to the judge, available to the public: the complaints or notices of inquiry, the judge's responses, and the committee's findings and dispositions in all of the proceedings.

(e) If a judge is publicly charged, through independent sources, with involvement in a proceeding before the committee, or publicly charged with conduct likely to become the subject of such a proceeding, the committee may, at the request or with the consent of the judge involved, issue brief public statements as it deems appropriate in order to confirm or deny the pendency of the proceeding, to clarify the procedural aspects thereof, to explain the right of the judge to a fair hearing without prejudgment, and to state that the judge denies the allegations.

(f) If the pendency of a proceeding before the committee is generally known to the public, through independent sources, and the subject matter thereof is of broad public interest or speculation, and public confidence in the administration of justice may be threatened because of lack of information concerning the status of the proceeding and the requirements of due process, the committee may, after consultation with the chief justice or senior associate justice of the supreme court, issue brief statements as it may deem appropriate in order to confirm the existence of the investigation, to clarify the procedural aspects of the proceeding, to explain that the judge is entitled to due process, and to state that the judge denies the allegations.

(g) If the committee, at any stage of a proceeding, dismisses a complaint or formal charges, the committee shall inform the complainant of such disposition. In addition, the committee may, at the request or with the consent of the judge concerned, issue a short explanatory statement to the public.

(h) If the committee disposes of a proceeding by informal resolution or adjustment prior to the filing of formal charges, it shall inform the complainant of the form of informal resolution or adjustment. However, if the committee provides for monitoring or review of remedial action that it may require or conditions it may impose in connection with any informal resolution, it may make such disclosure of the terms of such informal resolution to the administrative judge or other person to whom such monitoring or review is delegated by the committee as necessary to enable such judge or person properly to perform such function.

(i) This section shall not be construed to prohibit the committee from preparing and releasing to the public materials which are not related to any particular proceeding or situation. Such materials may include explanations of:

(1) The jurisdiction of the committee and the limitations upon its powers and authority;

(2) The procedure for filing complaints; and

(3) The internal procedures of the committee.

In addition, the committee may release periodic statistical reports of its work which do not identify or permit the identification of any person involved in any proceeding before the committee other than persons involved in proceedings governed by subsections (c) and (d) of this section.

(j) Nothing herein shall prevent the committee from responding to unjustified public criticism of a judge who is not the subject of a proceeding, and the committee may so respond in appropriate cases.

(k) Any violation of these provisions relating to confidentiality shall constitute contempt of the supreme court. The committee may enforce these provisions by appropriate proceedings for contempt before any justice of the supreme court. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it.

Supreme Court Comment - 1996 amendment to subdivision (3). Supreme Court Order, effective January 2, 1996, provided:

"One of the protections of the confidentiality provision is that a complainant is not liable for good faith statements contained in a complaint or made in the course of its proceedings.

"Nothing in the rule of confidentiality prevents a complainant from disclosing publicly the conduct of a judge which he or she believes violates the Code of Judicial Conduct or is otherwise inappropriate. The immunity from civil liability does not apply to such disclosures. The rule does prohibit a complainant, however, from disclosing publicly the fact that a complaint against the judge about the conduct has been filed with the committee until a statement of formal charges is prepared and filed as described in section 9(a) of this rule or until the complaint is finally disposed of by the committee.

"Once a complaint has been disposed of by the committee, a complainant may make a public disclosure concerning the filing of a complaint including the conduct complained of and the action of the committee. The duty of confidentiality upon the committee remains, however, unless one of the specified exceptions provided by the rules applies."

(4) Grievance, Filing, Period of Limitation.

(a) Any person may file a grievance with the committee to call to the attention of the committee conduct that the grievant believes constitutes misconduct by a judge that should be investigated by the committee.

(b) A grievance shall be filed with the committee by sending or delivering it to the New Hampshire Supreme Court Committee on Judicial Conduct, Frank Rowe Kenison Supreme Court Building, P.O. Box 1476, Concord, New Hampshire 03301-1476. A grievance shall be deemed filed when received by the committee.

(c) Period of Limitation. No formal disciplinary proceedings shall be commenced unless a grievance is filed with the committee or a committee-generated complaint is docketed by the committee under section (7)(b) of this rule:

(1) within one (1) year after the commission of the alleged misconduct when the alleged misconduct was committed before April 1, 2000;

(2) within two (2) years after the commission of the alleged misconduct when the alleged misconduct was committed on or after April 1, 2000;

except when the acts or omissions that are the basis of the grievance were not discovered and could not reasonably have been discovered at the time of the acts or omissions, in which case, the grievance must be filed within two years of the time the grievant discovers, or in the exercise of reasonable diligence should have discovered, the acts or omissions complained of.

Misconduct will be deemed to have been committed when every element of the alleged misconduct has occurred, except, however, that where there is a continuing course of conduct, misconduct will be deemed to have been committed beginning at the termination of that course of conduct. If the continuing course of conduct began before but terminated after April 1, 2000, continuing misconduct through March 31, 2000, will be subject to the one (1) year period of limitations while continuing misconduct for the period beginning on or after April 1, 2000, will be subject to the two (2) year period of limitations.

(5) Committee Procedure After Receipt of Grievance.

(a) The executive secretary of the committee shall acknowledge receipt of a grievance in a timely fashion.

(b) A copy of the grievance shall be sent to each member of the committee. The committee shall review each grievance at a meeting of the committee to determine whether the grievance is against a judge and whether the grievance meets the requirements for docketing as a complaint.

(c) A grievance shall be docketed as a complaint if it is against a judge and it satisfies the following requirements:

(1) It contains a concise statement of the facts which, if true, would establish a violation of the Code of Judicial Conduct.

(a) A grievance that relates to a judge's findings, rulings or decision, which, in effect, is a substitute for an appeal, will not be considered by the committee.

(b) A grievance which is repetitive of a prior grievance or complaint, whether from the same or a different source, shall not be docketed as a complaint.

(2) It was filed by a person who is or was directly affected by the conduct complained of or who was present when the conduct complained of occurred, and it contains a concise statement establishing these facts.

(3) It is typed or in legible handwriting and signed by the grievant under oath or affirmation. The following language, or language that is substantially equivalent, must appear above the grievant's signature: "I hereby swear or affirm under the pains and penalties of perjury that the information contained in this grievance is true to the best of my knowledge."

(4) It was filed with the committee within the period of limitation set forth in section (4)(c).

(d) A grievance that is filed against a person who is not a judge or that fails to satisfy the requirements for docketing as a complaint as set forth in section (5)(c) shall be dismissed. The committee shall notify the grievant in writing of the reason for the committee's action. In addition, the committee shall take the following action:

(1) If the committee determines that the person who is the subject of the grievance is not subject to the Code of Judicial Conduct, it shall return the grievance to the grievant with a letter explaining the reason for the dismissal. No file on the grievance will be maintained; however, the committee shall retain a copy of the letter to the grievant returning the grievance, which shall be available for public inspection in accordance with section (16)(a). The committee may bring such matter to the attention of the authorities of the appropriate jurisdiction, or to any other duly constituted body which may provide a forum for the consideration of the grievance and shall advise the grievant of such referral.

(2) If the committee determines that the grievance does not allege conduct that violates the Code of Judicial Conduct, that the grievant lacks standing, or that the grievance was not filed within the period of limitation, the judge who is the subject of the grievance shall be provided with a copy of the grievance and the decision of the committee and will be given an opportunity to submit a reply within 30 days from the date of the notification or such further time as may be ordered by the committee. The reply shall be available for public inspection in accordance with section (16)(b).

(e) Notification to Administrative Judge. Whenever the executive secretary provides a judge with a copy of a grievance against such judge which has been dismissed, the executive secretary shall at the same time send a copy of the grievance to the chief justice or administrative judge of the court in which such person serves. In such instances, the chief justice or administrative judge shall send a copy of the grievance to the presiding justice of the particular court in which such person serves.

(6) Inquiries Initiated by Committee.

The committee may initiate an inquiry concerning the conduct of any judge on its own motion, without a signed written grievance, upon any reasonable factual basis. No such inquiry shall be initiated by the committee except upon the affirmative vote of six or more members of the committee taken at a meeting thereof. Notice of the initiation of an inquiry by the committee on its own motion shall be given to the judge by the committee at such time as it deems appropriate. The committee may delay giving such notice to the judge to avoid possible compromise of the inquiry and any resulting investigation or for other good reason. Unless the committee votes to docket a complaint against a judge in accordance with section (7)(b), all records of a committee-initiated inquiry shall be confidential.

(7) Docketing Grievance As Complaint; Procedure Following Docketing of Complaint.

(a) Docketing of Grievance as Complaint. If the committee determines that a grievance is against a judge and satisfies the requirements for docketing as a complaint as set forth in section (5)(c), it shall be docketed as a complaint.

(b) Drafting and Docketing of Committee-generated Complaint. If, after undertaking and completing an inquiry on its own initiative in accordance with section (6), the committee determines that there is a reasonable basis to docket a complaint against a judge, a written complaint shall promptly be drafted and docketed.

(c) Request for Answer to Complaint. After a complaint is docketed, the executive secretary shall promptly forward to the judge a copy of the complaint and a request for an answer thereto or to any portion thereof specified by the committee. Unless a shorter time is fixed by the committee and specified in such notice, the judge shall have 30 days from the date of such notice within which to file his or her answer with the committee. Such answer shall be filed with the executive secretary, who shall, upon receipt of a written request from the grievant, provide to the grievant a copy of the judge's response. In addition to the required answer, the judge may submit to the committee such other matters as he may choose.

Whenever the executive secretary provides a judge with a copy of a complaint against such judge, the executive secretary shall at the same time send a copy of the complaint to the chief justice or administrative judge of the court system in which such person serves. In such instances, the chief justice or administrative judge shall send a copy of the complaint to the presiding justice of the particular court in which such person serves.

(d) For good cause shown, the chair may extend the time within which the judge is required to file his or her answer.

(8) Preliminary Investigation.

(a) The committee may undertake an investigation of any complaint properly before it upon the affirmative vote of seven or more members of the committee taken at a meeting thereof. Such investigation shall be conducted under the direction of the chair and in such manner as he or she may determine.

(b) The judge shall be notified of the investigation and afforded a reasonable opportunity to present such relevant matters as he or she may choose.

(c) In conducting an investigation, the chair may require that any statement or written information furnished to the committee or its employees be given under oath or affirmation subject to the penalties for perjury or false swearing in official proceedings pursuant to RSA chapter 641.

(d) Persons contacted for information shall be informed of their obligation to maintain confidentiality as set forth in section (3) or (3-a).

(e) Judges, clerks of court, court employees, members of the bar, and other officers of the court shall comply with the reasonable requests of the committee for assistance and cooperation in the conduct of any investigation by the committee.

(f) During the course of its investigation, the committee may informally resolve the matter with the consent of the judge. Such informal resolution may take the form of written advice or admonishment, the requirement of remedial action, or the imposition of conditions, or any combination thereof. The committee may provide for monitoring or review by an administrative judge or other suitable person of any remedial action it may require or conditions it may impose in connection with an informal resolution or adjustment. The consent of the judge to informal resolution of the matter shall constitute a waiver of his or her right to a hearing.

(g) Upon completion of the investigation, if the matter has not been informally resolved pursuant to subsection (f) of this section, the committee shall determine whether the investigation has disclosed probable cause to warrant formal proceedings. If the committee does not determine that the investigation has disclosed probable cause to warrant formal proceedings, the committee shall dismiss the complaint or terminate the inquiry commenced on its own motion with or without a warning, and shall promptly notify the judge and the grievant (if any) in writing of such dismissal or termination.

(h) If the matter is not informally resolved or adjusted and if the investigation does not disclose probable cause to warrant further proceedings, the person submitting the statement, criticism or complaint shall be so notified but nevertheless a hearing may be requested by the judge complained against. The judge complained against shall be notified of the committee's findings and action.

(i) A complaint relating to a trial or judicial proceeding in progress shall be held in abeyance until the termination of the trial or proceeding, unless the committee for good cause votes to proceed immediately with such complaint.

(9) Statement of Formal Charges, Notice of Hearing and Answer.

(a) If, after investigation the committee concludes, by the affirmative vote of seven or more members taken at a meeting, that probable cause to warrant formal proceedings exists, it shall prepare and file a formal statement of charges and shall set a time and place of hearing before itself. The committee shall promptly serve the judge, in hand or by registered or certified mail, postage prepaid, with a copy of the formal statement of charges together with a notice of hearing.

(b) The formal statement of charges shall (i) state whether the committee is proceeding on the basis of a complaint based upon a written grievance or upon a committee-generated complaint, (ii) contain a clear summary of the allegations against the judge and of the alleged facts forming the basis of such allegations (including facts developed by the investigation), (iii) identify and cite the specific provisions of the Code of Judicial Conduct alleged to have been violated, and (iv) advise the judge of his or her duty to answer as provided in subsection (f) of this section.

(c) The formal statement of charges together with the notice of hearing shall be served on the judge at least thirty days prior to the hearing date assigned.

(d) The notice of hearing shall include the following:

(1) the date, time, and place of the hearing;

(2) the fact that both the committee and the judge may be represented by counsel at the hearing, may secure the attendance of witnesses and the production of documents by subpoena, and may examine and cross-examine witnesses;

(3) the identity of any committee or hearing counsel; and

(4) the fact that all further notices concerning the hearing, including any adjournments thereof, shall be given by the chair or pursuant to his or her direction.

(e) The committee shall give notice to the grievant of the date, time, and place of the hearing. The grievant shall be entitled to attend the hearing as an observer, and may be required to attend and participate therein as a witness, but shall have no other function or right with respect to the hearing.

(f) Within thirty days after receipt of the formal statement of charges, the judge shall file an answer with the executive secretary, setting forth all denials, affirmative defenses, mitigating circumstances, and other matters which the judge intends to raise at the hearing.

(g) At any time prior to final decision, the committee may allow or require an amendment of the formal statement of charges, and may allow an amendment of the answer. When an amendment is made to the formal statement of charges, whether before or after commencement of the hearing, the judge shall be afforded a reasonable time and opportunity, as determined by the chair, to answer and prepare a defense against the matters newly charged.

(h) For good cause shown, the chair may extend the time within which the judge is required to file his or her answer, and may grant a continuance of the scheduled hearing, but no such extension or continuance shall be for a period longer than thirty days without the concurrence of the committee.

(i) The committee may terminate the proceeding and dismiss the complaint and formal statement of charges following the answer by the judge, or at any time thereafter, and shall in that event give notice to the judge and the grievant that it has found insufficient cause to proceed.

(10) Discovery and Subpoena Powers.

(a) At any time after the filing of a formal statement of charges, the judge or his or her counsel shall, upon written request, be entitled, as a matter of course:

(1) to obtain the names and addresses of all persons known to the committee to have relevant information;

(2) to examine and copy any of the following:

(A) statements of the grievant;

(B) statements of persons claiming to have knowledge of the acts, omissions, or events underlying the formal proceeding;

(C) investigative reports made by or for the committee in connection with the proceeding; and

(D) any other writing or item which is relevant to the proceeding, or which appears likely to lead to relevant information.

(3) to discovery to the extent permitted in civil proceedings.

Anything in this section to the contrary notwithstanding, the committee shall not be required to disclose to the judge the identity of any informant who will not be called as a witness in support of the charges, and who has declined to sign a written grievance, unless the alleged misconduct was directed at the informant.

(b) The judge shall make available to the committee, as a matter of course, upon the written request of the chair, executive secretary, or hearing counsel, any specified material which would be discoverable in civil proceedings in this State. The committee shall be entitled to discovery to the extent permitted in civil proceedings.

(c) Nothing in this section shall authorize access to any information, writing, or other item which is privileged by law, or which is protected as an attorney's work product.

(d) If disclosure is not forthcoming as provided in subsection (a) or (b) of this section, the judge or the committee may move to compel discovery before a justice of the supreme court.

(e) Witnesses may be summoned by subpoena issued by a single justice of the supreme court upon request of the committee or the judge whose conduct is being investigated. A single justice shall have the power to subpoena witnesses, compel their attendance and testimony, and require the production of books, records, documents, or other evidence or material deemed relevant to the investigation or hearing.

(f) The subpoena power shall be exercised in behalf of the judge, upon the judge's written request or the written request of the judge's counsel.

(g) If any witness disobeys a subpoena, either as to his or her appearance or as to the production of things specified in the subpoena, or refuses to testify or answer questions, the committee may apply to a justice of the supreme court for an order compelling compliance with the subpoena or compelling him to testify.

(h) Witnesses summoned to appear shall be entitled to the same fees and mileage expenses provided by law for witnesses in regular judicial proceedings. The expenses of witnesses shall be borne in the first instance by the party calling them.

 

(11) Conduct of Hearing.

(a) The hearing shall be open to the public.

(b) The committee may proceed with the hearing at the time and place fixed, whether or not the judge has filed an answer or appears for the hearing. The committee may draw an unfavorable inference from the failure of the judge to answer or appear; but no such failure, standing alone, shall be sufficient to meet the standard of proof.

(c) Every witness in any hearing before the committee shall be sworn to tell the truth.

(d) Hearing counsel shall have the burden of establishing by clear and convincing evidence a violation of the Code of Judicial Conduct.

(e) The judge shall be entitled to counsel of his or her choice, and shall have the right to adduce evidence, produce and cross-examine witnesses, and present all relevant arguments. The judge shall be given an opportunity to explain and be heard before the committee in advance of any unfavorable action.

(f) The committee shall not be bound by the technical rules of evidence, and may admit evidence which it considers to be reliable, material, and relevant. The chair shall rule on objections to the receipt of evidence, subject to being overruled by a majority of the committee present at the hearing.

(g) The hearing shall be recorded verbatim by stenographic, electronic, or other means approved by the committee. A transcript of the hearing shall be provided to the judge without cost.

(h) The decision of the committee shall be based solely on the record evidence presented to the committee at the hearing, but shall not be based solely on hearsay evidence. The committee shall exclude from its consideration any information reviewed in earlier stages of the proceeding, unless such information is received in evidence at the hearing so as to become a part of the record.

(i) At any time after the hearing is closed but prior to final decision, the committee may reopen the hearing for the taking of additional evidence. The judge and the grievant shall be given such notice of any such supplemental session as the circumstances may reasonably require.

(j) No person may record, photograph, or broadcast by radio or television, the oral proceedings of the committee.

(12) Dispositions Following Hearing.

(a) The committee shall render its decision promptly after the hearing.

(b) If the committee decides that a violation of the Code of Judicial Conduct has not been established, the proceeding shall be dismissed, with or without a warning, and the judge and the grievant shall be so notified.

(c) If the committee determines, by the affirmative vote of at least seven of its members, that there has been a violation of the Code of Judicial Conduct, but that the violation is not of a sufficiently serious nature to warrant the imposition of formal discipline by the supreme court, it shall dispose of the matter by informal resolution or adjustment. Such disposition may take the form of admonishing the judge, issuing a reprimand, requiring corrective action, directing professional counseling or assistance, imposing conditions on the judge's conduct, or other similar remedial action, or any combination of the foregoing. The committee may provide for monitoring or review by an administrative judge or other suitable person of any remedial action it may require or conditions it may impose in connection with an informal resolution or adjustment. If a proceeding is disposed of by informal resolution or adjustment pursuant to this subsection (c), the committee shall prepare a report of its findings and disposition, which shall be available for public inspection. Disclosure to the grievant shall be limited as provided in subsection (3)(c)(2) or subsection (3-a)(h) of this rule.

(d) If the committee determines, by the affirmative vote of at least seven of its members, that the judge complained against has violated the Code of Judicial Conduct and that the violation is of a serious nature so as to warrant formal disciplinary action by the supreme court, the committee shall prepare a summary report of the proceeding and of its findings. Such report shall include the recommendations of the committee (if any) concerning the sanctions to be imposed. Any member who dissents from the determination of the committee may prepare a minority opinion which shall be appended to the report of the committee. The committee shall also prepare a record of the proceeding, which shall include the committee's formal statement of charges, the judge's answer, any other pleadings, exhibits, and a transcript of the hearing. The committee's report and the record of the proceeding, certified by the chair or the executive secretary, shall be filed with the supreme court. Said report and record and all further proceedings before the court shall be public. Contemporaneously with such filing, copies shall be served on the judge, in the manner provided in section 9(a), and proof of such service shall be filed with the court.

(13) Review by Supreme Court.

Upon receipt of a report of its findings from the committee under section 12(d), the supreme court shall set the matter down for hearing which shall be open to the public. At such hearing the judge complained against shall have the opportunity to appear in person and/or by counsel and be heard on the facts and the law. The supreme court shall file a written opinion and judgment directing such disciplinary action as it finds just and proper, or exonerating the judge complained against.

(14) Counsel Fees.

Upon application from a judge against whom formal charges have been brought, the committee may, in its discretion and subject to the availability of funds, pay such portion as it deems equitable of the fee and expenses of the judge's counsel. Within 30 days of the committee's decision on such an application, the judge may request that the court review the matter.

(15) Immunity.

All persons shall be immune from civil liability for all of their statements made in good faith to the committee or to the supreme court or given in any investigation or proceedings pertaining to a grievance or complaint against a judge. The protection of this immunity does not exist as to: (a) any statements not made in good faith; and (b) any statements made to others. The committee, its staff, counsel, and investigators shall be immune from civil liability for any conduct arising out of the performance of their duties.

(16) Public Access to Committee Proceedings and Records.

(a) Correspondence relating to a grievance against a person who is not subject to the Code of Judicial Conduct shall be available for public inspection for a period of two years. After this two-year period, the correspondence shall be sealed.

(b) All records (other than work product, internal memoranda, and deliberations) relating to a grievance against a judge that is not docketed as a complaint shall be maintained by the committee for two years from the date of filing, and shall be available for public inspection during this period. After this two-year period, the records shall be sealed.

(c) All records (other than work product, internal memoranda, and deliberations) relating to a grievance filed with the committee that is docketed as a complaint shall be retained by the committee and shall be available for public inspection in accordance with the provisions of this rule.

(d) The committee shall maintain an index of complaints docketed against each judge, which shall contain pertinent information, including the outcome of the complaint. No index of grievances that are not docketed as complaints shall be maintained.

(17) Use of Closed Files.

A closed file may be referred to by the committee in subsequent proceedings in the following circumstances:

(a) Where a complaint or formal charges have been dismissed for any reason or there has been a finding of insufficient cause to proceed, and the subsequent proceeding raises similar allegations against the judge or is based upon a similar occurrence or factual situation, the closed file may be used to exonerate the judge or may be made a part of the investigation of the new complaint; or

(b) Where, after the disposition of a prior proceeding by informal resolution or adjustment, the judge fails to refrain from acting in the manner that caused the prior grievance or complaint to be filed and a subsequent grievance is filed alleging similar conduct which is established or proven, the closed file may be used as evidence tending to show that the problem is a continuing one; or

(c) Where, following the hearing of subsequent related or unrelated charges, the committee determines that a violation of the Code of Judicial Conduct has occurred, the closed file may be referred to in connection with the decision as to the nature of the informal resolution to be imposed by the committee or as to the sanction to be recommended to the supreme court for imposition by the court.

 

January 3, 2000

ATTEST: Howard J. Zibel, Clerk

Supreme Court of New Hampshire