PROCEDURAL RULES OF JUDICIAL CONDUCT COMMISSION
Approved and Effective May 10, 2002
(1) Applicability.
All proceedings of the judicial conduct commission, created by RSA 494-A, shall be governed by these rules.
(2) Definitions.
As used herein, the following terms shall have the following meanings:
Admonishment - Non-disciplinary action taken by the commission 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.
Answer - The response filed by a judge to a complaint or statement of formal charges.
Censure - A disciplinary action by which the Commission issues a severe or solemn reproach for a violation of the Code of Judicial Conduct; reprimand.
Clerk - A clerk of court or a deputy clerk, a register of probate or deputy register, a court stenographer or reporter, and any person performing the duties of a clerk, register, or reporter.
Code of Judicial Conduct - The Code of Judicial Conduct, as adopted by the Judicial Conduct Commission, as the same may from time to time be amended.
Commission Counsel - Counsel engaged by the commission to assist it prior to the filing of formal charges.
Commission - The Judicial Conduct Commission as established by RSA 494-A.
Commission Chair - The chair of the commission, or, in the absence of the chair, the vice-chair of the commission.
Complaint - A grievance that is docketed by the commission after being reviewed and determined to satisfy (1) the requirements for docketing as a complaint as set forth in section (5)(c), and (2) minimum standards of credibility in the judgment of the commission, or a complaint which is drafted and docketed by the commission in accordance with section (7)(b) after a commission-initiated inquiry.
Court - The New Hampshire Supreme Court.
Discipline - Any disciplinary action authorized by this rule or by RSA 494-A in a matter in which conduct in violation of the Code of Judicial Conduct is found to warrant disciplinary action.
Grievance - A written allegation of a violation of the code by a judge, which is filed with the commission.
Grievant - A person who communicates a grievance to the commission.
Hearing - The proceedings which follow a statement of formal charges.
Hearing counsel - Counsel engaged by the commission to prosecute formal charges before the commission or disciplinary proceedings. A lawyer who has served as commission counsel in connection with a matter may, in appropriate circumstances and in the commission's discretion, be engaged to serve as hearing counsel. Hearing counsel, after being appointed as such, shall have no ex parte communications with the commission.
Informal resolution - Corrective action imposed by the commission, and agreed to by the judge when the commission determines that the judge has engaged in conduct that is not of a sufficiently serious nature to warrant the imposition of formal discipline. Informal resolution may include admonishment of the judge, 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 commission on its own initiative to determine whether a complaint should be docketed.
Investigation - Fact gathering by or under the direction of the commission with respect to alleged misconduct.
Investigator - Any person designated by the commission to assist it in the investigation of alleged violation.
Judge - This term includes: a full-time, or part-time judge of the supreme, superior, probate or district court; a retired judge who is recalled to judicial service; a full-time marital master; any referee or special master who is an officer of the judicial system and who performs judicial functions; or a clerk.
Probable cause - A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves, to cause a cautious and prudent person to believe that the allegation contained in a grievance, if true, may constitute a violation of 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 commission alleging a violation of the Code of Judicial Conduct by a judge, or with respect to an inquiry concerning the conduct of a judge which the commission has initiated on its own motion. Members of the commission may participate and vote in such proceedings by means of a conference telephone or other communications equipment, which provides that all persons participating in the meeting can hear each other at the same time. Participation in this fashion shall constitute a member's presence at a meeting.
Reprimand - A disciplinary action by which the Commission issues a severe or solemn reproach for a violation of the Code of Judicial Conduct; censure.
Rule - The provisions of the Code of Judicial Conduct adopted by the Judicial Conduct Commission.
Statement of Formal Charges - A formal pleading served under section (9) of this rule by the commission.
Suspension - The temporary prohibition of a judge from exercising judicial authority for the period of time specified by the court.
(3) Confidentiality of Proceedings.
Applicability Note: Section 3 shall apply to records and proceedings in all matters initiated on or after the effective date of these rules.
(a) A grievant shall keep confidential the fact that he/she has filed a grievance until the Commission brings formal charges against the judge or otherwise disposes of the grievance.
(b) In the case of any grievance upon which the commission makes a finding of probable cause, the complaint, response, transcripts, findings, reports of deliberations and reports of actions taken shall be available to the public, except that work product, internal memoranda, investigatory reports and deliberations shall remain confidential.
(c) In the case of any grievance upon which the commission does not make a finding of probable cause, the complaint, response, transcripts, findings, reports of deliberations and reports of actions taken shall be available to the public after redaction of all information identifying the person complained against, except that work product, internal memoranda, investigatory reports and deliberations shall remain confidential.
(d) When a judge has received 3 or more informal resolutions during the preceding 5 years, the prior complaints, responses, transcripts, findings, reports of deliberations and reports of actions shall be available to the public.
(e) Files made public under sections (b), (c) and (d) shall be available for public inspection within a reasonable time not to exceed 40 days after the commission's final disposition of the case.
(f) Protective order. Any person or entity may request from the commission, or the commission 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 commission. The commission shall act upon the request within a reasonable time.
(g) Any file may be made available for public inspection other than work product, internal memoranda, investigatory reports and deliberations, upon receipt of a written waiver of confidentiality by the person complained against, and upon affirmative vote of the commission.
(h) No member of the commission or its staff and no employee of the commission 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 or upon receipt of a written waiver of confidentiality by the person complained against. Violation of this section shall be cause for removal of a member pursuant to RSA 494-A:16 or dismissal of an employee.
(i) Any violation of the provisions of this section by any party including the grievant, may result in action of the commission 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 this section, terminating the proceedings with or without public comment, or such other action as the commission deems appropriate under the circumstances. Notwithstanding the provisions of this rule, the commission may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the administrative judge of the court in which the judge complained against holds office. Notwithstanding the provisions of this rule, the commission may also disclose relevant information that is otherwise confidential to agencies or commissions authorized to investigate the qualifications of judicial candidates, provided that the judge who is the subject of the request has signed a waiver permitting the requesting agency or commission to obtain confidential information.
(4) Grievance, Filing, Period of Limitation.
(a) Any person may file a grievance with the commission to call to the attention of the commission conduct that the grievant believes constitutes a violation by a judge that should be investigated by the commission.
(b) A grievance shall be filed with the commission by sending or delivering it to the Judicial Conduct Commission, 501 South Street, Bow, New Hampshire 03304. A grievance shall be deemed filed when received by the commission.
(c) Period of Limitation. No formal disciplinary proceedings shall be commenced unless a grievance is filed with the commission or a commission-generated complaint is docketed by the commission under section (7)(b) of this rule within 3 years after the commission of the alleged violation or from the conclusion of the trial or appeal during which the act occurred 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 2 years of the time the grievant discovers, or in the exercise of reasonable diligence should have discovered, the acts or omissions complained of.
A violation will be deemed to have been committed when every element of the alleged violation has occurred.
(5) Commission Procedure After Receipt of Grievance.
(a) The executive director of the commission shall acknowledge receipt of a grievance in a timely fashion.
(b) A copy of the grievance shall be sent to each member of the commission. The commission shall review each grievance at a meeting of the commission to determine whether the grievance is against a judge and whether the grievance meets the requirements for docketing as a complaint. The commission may undertake an investigation of any grievance properly before it upon the affirmative vote of 6 or more members of the commission 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.
(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 is based on a judge's findings, rulings or decision, which, in effect, is a substitute for an appeal, will not be considered by the commission.
(b) A grievance which is repetitive of a prior grievance or complaint before this commission, or which is repetitive of a prior or simultaneously filed grievance or complaint before the Supreme Court Committee on Judicial Conduct, 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 commission 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 commission shall notify the grievant in writing of the reason for the commission's action. In addition, the commission shall take the following action:
(1) If the commission 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. The commission shall retain a copy of the letter to the grievant returning the grievance, which shall be available for public inspection. The commission 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 commission 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 grievant shall be so notified and the judge who is the subject of the grievance shall be provided with a copy of the grievance and the decision of the commission 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 commission. The reply shall be available for public inspection in accordance with section 3.
(e) Notification to Administrative Judge. Whenever the executive director provides a judge with a copy of a grievance against such judge which has been dismissed, the executive director 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 is encouraged to send a copy of the grievance to the presiding justice or supervisory justice of the particular court in which such person serves.
(6) Inquiries Initiated by Commission.
The commission 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 commission except upon the affirmative vote of 6 or more members of the commission taken at a meeting thereof. Notice of the initiation of an inquiry by the commission on its own motion shall be given to the judge by the commission at such time as it deems appropriate. The commission may delay giving such notice to the judge to avoid possible compromise of the inquiry and any resulting investigation or for other good reason.
(7) Docketing Grievance As Complaint; Procedure Following Docketing of Complaint.
(a) Docketing of Grievance as Complaint. If the commission 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 Commission-generated Complaint. If, after undertaking and completing an inquiry on its own initiative in accordance with section (6), the commission 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 director 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 commission. Unless a shorter time is fixed by the commission and specified in such notice, the judge shall have 21 days from the date of such notice within which to file his or her answer with the commission. In addition to the required answer, the judge may submit to the commission such other relevant matters as the judge may choose. The executive director shall send a copy of the judge's response to the grievant.
(d) Whenever the executive director provides a judge with a copy of a complaint against such judge, the executive director 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 is encouraged to send a copy of the complaint to the presiding justice or supervisory justice of the particular court in which such person serves.
(e) 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 commission may undertake an investigation of any complaint properly before it upon the affirmative vote of 6 or more members of the commission taken at a meeting thereof.
(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 commission may require that any statement or written information furnished to the commission or its employees be given under oath or affirmation subject to the penalties for perjury or false swearing in official proceedings pursuant to RSA 641.
(d) Persons contacted for information shall be informed of their obligation to maintain confidentiality.
(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 commission for assistance and cooperation in the conduct of any investigation by the commission.
(f) During the course of its investigation, the commission 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 commission 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, but in no case later than 90 days after the first meeting following the receipt of the grievance, or for good cause shown, such longer period as determined by the commission, if the matter has not been informally resolved pursuant to subsection (f) of this section, the commission shall determine whether the investigation has disclosed probable cause to believe that the judge has committed a violation of the Code of Judicial Conduct. If the commission does not determine that the investigation has disclosed probable cause to believe that the judge has committed a violation of the Code of Judicial Conduct, the commission shall dismiss the complaint or terminate the inquiry commenced on its own motion, 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 and if the investigation does not disclose probable cause to warrant further proceedings, the person submitting the grievance shall be so notified but nevertheless the judge complained against shall, upon request, be afforded the opportunity to appear before the commission to address the subject matter of the grievance. The judge complained against shall be notified of the commission'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 commission for good cause votes to proceed immediately with such complaint.
(9) Statement of Formal Charges, Notice of Public Hearing and Answer.
(a) If, after investigation the commission concludes, by the affirmative vote of 6 or more members taken at a meeting, that probable cause to believe that the judge has committed a violation of the Code of Judicial Conduct, it shall prepare and file a formal statement of charges and shall set a time and place of hearing before itself. Such hearing shall be a public hearing. The commission 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 commission is proceeding on the basis of a complaint based upon a written grievance or upon a commission-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 30 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 commission 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 commission 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 commission 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 30 days after receipt of the formal statement of charges, the judge shall file an answer with the executive director, 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 commission 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 30 days without the concurrence of the commission.
(i) The commission 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 commission 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 commission 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 commission 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 violation was directed at the informant.
(b) The judge shall make available to the commission, as a matter of course, upon the written request of the chair, executive director, or hearing counsel, any specified material which would be discoverable in civil proceedings in this State. The commission 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 commission may move to compel discovery before a justice of the superior court.
(e) Witnesses may be summoned by subpoena issued by the chairman of the commission or the judge whose conduct is being investigated. The chairman 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 commission may apply to a justice of the superior court for an order compelling compliance with the subpoena or compelling the witness 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 commission 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 commission 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 commission 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 commission in advance of any unfavorable action.
(f) The commission 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 commission present at the hearing.
(g) The hearing shall be recorded verbatim by stenographic, electronic or other means approved by the commission. A transcript of the hearing shall be provided to the judge without cost.
(h) The decision of the commission shall be based solely on the record evidence presented to the commission at the hearing, but shall not be based solely on hearsay evidence. The commission 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 commission 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 proceedings of the commission without the permission of the commission.
(12) Dispositions Following Hearing.
(a) The commission shall conduct its deliberations in a non-public session and shall render its decision promptly after the hearing. A written report of the deliberations shall be available to the public.
(b) If the commission decides that a violation of the Code of Judicial Conduct has not been established, the proceeding shall be dismissed, and the judge and the grievant shall be so notified.
(c) If the commission determines, by the affirmative vote of at least 7 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, it shall dispose of the matter by informal resolution. 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 commission 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. If a proceeding is disposed of by informal resolution pursuant to this subsection, the commission shall prepare a report of its findings and disposition, which shall be available for public inspection.
(d) If the commission determines, by the affirmative vote of at least 7 of its members, that the judge complained against has violated the Code of Judicial Conduct and that the violation is of so serious a nature as to warrant formal disciplinary action, the commission may impose disciplinary actions by informal resolution, by reprimand or censure, by recommendation of suspension by the supreme court or by recommendation of removal by the legislature.
(e) Failure of the judge to comply with the orders of the commission may constitute contempt and may be the basis for further proceedings before the commission or a petition for contempt before the New Hampshire supreme court.
(13) Review by Supreme Court.
An aggrieved party may appeal an order or decision of the commission to the supreme court, provided that such appeals shall be limited to consideration of matters of procedure and errors of law.
(14) Annual Report.
The commission shall submit an annual report pursuant to RSA 494-A:3,II(b).
(15) Use of Closed Files.
A closed file may be referred to by the commission 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, 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 commission 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 commission or as to the sanction to be recommended to the supreme court or legislature for imposition.
(16) Amendments.
These rules of procedure and the Code of Judicial Conduct may be amended by a vote of 6 or more members of the Commission provided that notice of its intended action is given not less than 7 days in advance of the vote and public hearing.
