THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

 

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, the Supreme Court of New Hampshire approves amendments to Supreme Court Rule 39 as set forth in Appendix A and adoption of Supreme Court Rule 39-A as set forth in Appendix B.

The amendments to Supreme Court Rule 39 and Supreme Court Rule 39-A shall take effect upon the effective date set forth in Supreme Court Rules 39 and 39-A.

May 7, 2001

ATTEST: ______________ Carol A. Belmain, Deputy Clerk

Supreme Court of New Hampshire

APPENDIX A

Amend Supreme Court Rule 39 by adding the following new subsection (10):

 

(10) Applicability

Upon and after the effective date of Supreme Court Rule 39-A, the jurisdiction and authority of the committee on judicial conduct shall be limited as set forth in Rule 39-A.

 

APPENDIX B

Adopt Supreme Court Rule 39-A as follows:

 

RULE 39-A. COMMISSION 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 commission on judicial conduct.

(2) Appointment of Commission

(a) The commission on judicial conduct shall consist of eleven members.

(1) One member shall be an active or retired justice of the superior court; one an active or retired district court judge; and one an active or retired probate court judge, all of whom shall be appointed by the supreme court.

(2) Two members shall be New Hampshire Bar Association members appointed by the president of the New Hampshire Bar Association.

(3) Three public members, who shall not be judges, attorneys, or elected or appointed public officials, shall be appointed by the Governor.

(4) One public member, who shall not be a judge or attorney, shall be appointed by the president of the Senate.

(5) One public member, who shall not be a judge or attorney, shall be appointed by the speaker of the House.

(6) One public member, who shall not be a judge, attorney, or elected or appointed public official, shall be appointed by the supreme court.

(3) Terms of Office

(a) The initial term of the first eleven members appointed after the effective date of this rule shall be as follows:

(1) Supreme court appointments: The initial term of the public member shall be for three years. The initial term of one judge shall be for two years. The initial term of one judge shall be for three years. The initial term of one judge shall be for four years.

(2) Bar president appointments: The initial term of one attorney shall be for three years. The initial term of one attorney shall be for four years.

(3) Governor appointments: The initial term of one public member shall be for two years. The initial term of one public member shall be for three years. The initial term of one public member shall be for four years.

(4) Senate president appointment: The initial term of the public member shall be for two years.

(5) House speaker appointment: The initial term of the public member shall be for four years.

(b) All terms after the initial appointments set forth in subparagraph (a) shall be for four years.

(c) A member may be reappointed for a four-year term. After the expiration of the member's second term, the member may not again be appointed to the commission until four years after the date of the member's last day as a member of the commission.

(4) Vacancy and Disqualification

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

(1) at the expiration of a member's term; provided, however, that the member shall remain in office after expiration of said term until his or her successor is appointed; or

(2) when a member ceases to hold office, by submitting his or her resignation to the commission, or otherwise; or

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

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

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

(6) when a member ceases to be domiciled in New Hampshire; or

(7) when a member is removed from office by the commission as provided in paragraph 10.

(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 by the appropriate appointing authority. A member selected to fill a vacancy shall hold office for the unexpired term of his or her predecessor, after which the successor may be appointed for a single four-year term. After the expiration of the successor's four-year term, the successor may not again be appointed to the commission until four years after the date of the successor's last day as a member of the commission.

(c) No member may participate in any proceedings before the commission involving his or her own conduct or in which the member was a witness or was otherwise involved in any capacity (other than in his or capacity as a member of the commission).

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

(e) 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, or for any other reason, the commission may designate a former member of the commission or of its predecessor (the judicial conduct committee) as an alternate to participate in any such proceeding or for the period of any such disability. If no former member is available, the commission may request the appropriate appointing authority to appoint an alternate to participate in any such proceeding or for the period of any such disability, in which case such alternate shall have the same qualifications as those required for the selection of the member who is being replaced.

(5) Expenses of the Commission and Staff

(a) The commission shall prepare and administer its own budget. Expenses shall be paid from appropriations of funds by the general court.

(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 commission shall appoint an executive secretary and such other persons as may be necessary to assist the commission 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 commission 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 commission. The executive secretary shall maintain the commission's records, maintain statistics concerning the operation of the commission, and prepare an annual report of the commission's activities for presentation to the commission. Subject to the direction and control of the commission, and subject to the availability of appropriated funds, 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 commission, direct the activities of the commission's office, and endeavor to keep members of the commission properly informed about its business.

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

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

(f) Subject to the availability of funds, the commission shall select its own office space, which should not be in the facilities of any branch of government.

(6) Quorum and Chair

(a) A quorum for the transaction of business by the commission shall be six members; provided, however, that no formal charges shall be instituted or unfavorable action taken against a judge except upon the affirmative vote of at least eight members. Except as otherwise provided in this rule or in Supreme Court Rule 40, no act of the commission shall be valid unless concurred in by six of its members.

(b) The commission shall elect the chair and vice-chair of the commission. 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 Commission

(a) Meetings of the commission 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 commission.

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

(8) Annual Report

On or before December 31 of each year, the commission shall prepare a report summarizing its activities during the preceding year. Upon approval by the commission, a copy of this report shall be filed with the Governor, the president of the Senate, the speaker of the House, the chief justice of the supreme court, the chairpersons of the House and Senate Judiciary Committees, and shall be made available to the public.

(9) Powers and Duties of the Commission

The commission 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 retain counsel as may from time to time be required to properly perform the functions prescribed by the commission, subject to the availability of appropriated funds;

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

(d) to dismiss a grievance or complaint when the grievant lacks standing, the commission 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 Commission.

(10) Attendance at Meetings; Removal of Members

(a) Commission members shall be expected to attend all meetings of the commission. The chair shall be authorized to excuse the attendance of commission members from any meeting for good cause. The chair is authorized to discuss with members whether continued service on the commission is justified when meetings are frequently missed.

(b) The chair, with the concurrence of a majority of the commission, shall be authorized to remove a member for cause, including unexcused or frequent absences or serious violations of the rules governing the commission. Prior to any vote by the commission on removal, the chair shall provide the member with a written statement of the reasons for which the member's removal is sought. The member shall have the right to file a written response within ten days, copies of which shall be provided to all other members of the commission by the executive secretary. The member shall have the right to attend the meeting at which removal is sought, and to speak prior to the commission's vote. The commission may hold such further proceedings as it deems necessary in its sole discretion prior to voting on removal.

(11) Transition provisions

(a) This rule shall take effect sixty days after funds are first appropriated for its implementation by the general court.

(b) The commission on judicial conduct created by this rule shall not have jurisdiction over grievances or complaints filed with its predecessor (the judicial conduct committee) prior to the effective date of this rule. The judicial conduct committee shall remain in existence after the effective date of this rule for the purpose of completing action on all matters pending before it on the effective date of this rule. All proceedings in such matters before the judicial conduct committee shall be governed by the rules in effect when the matter was filed with the committee.

(c) Within a reasonable time following the effective date of this rule, the judicial conduct committee shall transfer its records related to cases that have been finally disposed of to the supreme court. As pending matters before the committee are finally disposed of, the committee shall within a reasonable time thereafter transfer records related to such matters to the supreme court. The supreme court shall provide access to committee records and proceedings to the same extent as would the committee under Supreme Court Rule 40.

(d) After the effective date of this rule, references in Supreme Court Rules 38 and 40 to the committee on judicial conduct shall be deemed to include or to refer to the commission on judicial conduct, and references to Supreme Court Rule 39 shall be deemed to include or to refer to Rule 39-A.