Keeping tabs on the NH Court system

One of DCYF's abuses centers around secrecy, so I found the legislature's 2001 impeachment investigation into the Supreme Court quite interesting. An event after Chief Justice Brock's acquittal made it clear that the justices still have a lot to learn. I also discovered that interest in reforming judicial oversight is taking the overseers in odd directions.

Two? Three? JCCs?

The Judicial Conduct Committee has for years reviewed and investigated reports of judicial misconduct. As a part of the Supreme Court, they are emminently unsuited for investigating its justices, at least not with the appearance of conflicts of interest.

The court commissioned a "Task Force for the Renewal of Judicial Conduct Procedures" that concluded:

The Judicial Conduct Committee should be completely independent of the New Hampshire court system and the other branches of government, and should be renamed the Judicial Conduct Commission;

The legislature thought this was a good idea and in 2001 wrote Senate Bill 197 which says:

The judicial conduct committee should be completely independent of the New Hampshire court system and the other branches of government, and should be renamed the judicial conduct commission.

In the 2001 annual report of the Supreme Court, they note:

The Supreme Court took several significant steps this year to improve the way the conduct of judges is reviewed. Among them was the court's decision to establish a new "Judicial Conduct Commission" totally independent of the court system. The legislature however declined to provide funding.
The court has not disbanded the Judicial Conduct Committee (hereinafter called the JCC-I), but SB 197 did pass, with funding, and "their" Judicial Conduct Commission (hereinafter called the JCC-II) has formed, adopted rules, started proceedings, and has been declared unconstitutional. Currently it is not accepting grievances. If the court's new Judicial Conduct Commission shows any signs of life, we'll call that the JCC-III.

The JCC-I

Did the Judge in your case lie or do something else against the code of judicial ethics? If he violated provisions of the code, you can, and should, report his behavior to the Judicial Conduct Committee.

JCC-I is part of the NH Supreme Court which prefers the name "Committee on Judicial Conduct" but both names are in common use and I've never seen "CoJC" used.

Both the legislature and the Supreme Court expected the JCC-I to disappear after the task force's recommendation was met. However, while all the Codes of Judicial Conduct mandate that judges should respect and comply with the law, the legislature has limited power over the judicial system and apparently the judges don't want a legislative entity, no matter how independent, poking into their affairs. On the other hand, the legislation specified that the commission include three judges, and those slots have been filled. The judicial branch does have a strong influence on the JCC-II and therefore the JCC-I should have disbanded.

The JCC-II

In 2004, two years after the establishment of the JCC-II, the NH Supreme Court heard arguments on a Petition of the Judicial Conduct Committee claiming that the law that established it is unconstitutional. In a near-unanimous opinion, the court agreed. The decision made no mention of the report the court commissioned, and concluded
the power to regulate the conduct of judges, including the authority to take disciplinary action short of removal, is a judicial power.
The JCC-II responded by immediately falling on its sword, and purged its WWW site along the way. I was able to save a few items through various caches, but much is lost. Oops! Belay that! I just heard from their office administrator that the JCC-II did not ask that the site be taken down, the webmaster did it without consulting with the JCC-II. I'm curious as to whom he did consult with....

Another web page has more information on the JCC-II, but that information is being relocated here.

The JCC-III

As mentioned above, the Supreme Court wanted to create their own Commission on Judicial Conduct. As mentioned below, that may now be unconstitutional. This space will expand if new information becomes available.

Timeline

This section will grow substantially. Those who forget the lessons of history are doomed to repeat them, and I think that's happening. This section will be both a capsule summary and memory prod.

2000

In the year 2000, Howard Zibel, then the Clerk of the NH Supreme Court, reported some improprieties involving Supreme Court Justices Stephen Thayer and David A Brock involving a hearing on Thayer's divorce. In the end, Thayer resigned, Brock survived an impeachment trial, the other justices were investigated and not impeached, and in general the state got a detailed look at the inner workings of its Supreme Court and several other allegations of misconduct.

2001

Senate Bill 197 passed and the JCC-II began to organize. The Supreme Court wrote Rule 39A defining the JCC-III.

2002

The JCC-II began accepting grievances at the start of the year. None of the cases result in sanctions, though their annual report mentions "With rare exception, it is not a violation of the code of judicial conduct for a judge to make a decision, even if it is in error. The remedy in such a situation is not with the Commission, but through an appeal." I need to pursue this as there are situations that are not appealable. This might also interest people involved in limiting medical malpractice suits. Judges are allowed to make mistakes, doctors are not. What's the justice in that? Besides, grievances are not filed to seek remedy for an injury, but to prevent future cases. Attempts at using the JCC-II to "get even" with a judge should be rebuffed, but to allow a judge to makes errors without sanctions suggests to me that the Code of Judicial Conduct is flawed.

Both the JCC-I and JCC-II adopted rules or policies that require a grievant to choose only one forum for his or her complaint.

These WWW pages are developed, but never really polished and I don't even add a link from my home page. There are some circuituous paths here, so it does get picked up by Google.

2003

The good placement of the JCC-II's web site was dropped, and they are listed in the state directory under "Adminstrative Services." Again, no cases result in a warning or censure.

RSA 494-A:1 was amended to provide that: "All complaints made against judges . . . and clerks . . . shall be directed to the [Judicial Conduct C]ommission." This was a legislative attempt to get the JCC-I to do the right thing and disband. However, by attempting to take a power away from the courts, this provided an opening for a counter-attack by the JCC-I.

2004

the JCC-I petitioned the NH Supreme Court seeking to have the law that established the JCC-II ruled unconstitutional. The court did so in a decision that made no mention of the report the court commissioned, and concluded
the power to regulate the conduct of judges, including the authority to take disciplinary action short of removal, is a judicial power.
The next day the JCC-II web site was purged of all files except for an "out of business" page. This was not requested by the JCC-II. The site was restored the next day at their request.

A flurry of activity on this site brings substantial improvements, but there is work to do and some additions have to wait until events unfold.

Questions

Much is confused. I have several questions that I will get answers to. That will probably lead to more questions.

  1. Why did the JCC-I bring the petition, how were they being harmed by the existance and actions of the JCC-II or RSA 494?

    This is the most political question. An aggrieved party petitions the court for relief from some harm incurred. The major harm I see to the JCC-I is that some of its power was taken away. Is the JCC-I more interested in power, protecting citizens from judicial malpractice, or defending the Constitution? If it's the last, shouldn't the petition have been filed by a judge being investigated by the JCC-II?

  2. Is Supreme Court Rule 39-A unconstitutional?

    The Supreme Court decision made no reference to the 2000 "Task Force for the Renewal of Judicial Conduct Procedures" they commissioned. Rule 39-A is the Supreme Court's version of the Judicial Conduct Commission and from my reading everything that applies to the JCC-II applies to this, the JCC-III.

  3. Are minutes for the JCC-I available?

    From my reading, the JCC-I needs to produce very little documentation, I don't think minutes are necessary, I don't know if they are maintained or are available.

  4. Are all sanctions handed down by the JCC-II void?

    They're an unconstitutional entity. How can any of the sanctions remain in place? Answer - the JCC-II has not issued any sanctions, so there is nothing to void.

  5. Will those cases be heard by the JCC-I even if the two year "period of limitation" has been exceeded?

    It seems the JCC-I is duty bound to take over any active investigations. It also seems that, in the interests of providing a trustworthy judicial branch, all previous cases should be reviewed too, or at least be appealable.

  6. Just who did decide to purge the Commission's Web site?

    Conspiracy theorists needed. :-)

Other links

My testimony at a public hearing of the JCC-II to review the proposed Rules of Procedure.

Contact Ric Werme or return to his home page.

Written 2002 April 18, last updated 2004 June 16.