TITLE LI
COURTS

Chapter 494-A
JUDICIAL CONDUCT COMMISSION

Section 494-A:1

    494-A:1 Judicial Conduct Commission Established. – A judicial conduct commission is hereby established which shall be completely independent of the New Hampshire court system and other branches of government. All complaints made against judges, as defined in RSA 494-A:2, IV, and clerks, as defined in RSA 494-A:2, I, shall be directed to the commission. The commission shall be administered by an executive director, appointed under RSA 494-A:3.

Source. 2001, 267:3. 2003, 319:171, eff. Jan. 1, 2004.

Section 494-A:2

    494-A:2 Definitions. –
In this chapter:
I. "Clerk" means 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.
II. "Commission" means the judicial conduct commission established under RSA 494-A:1.
III. "Executive director" means the executive director of the commission appointed under RSA 494-A:3.
IV. "Judge" means a full-time or part-time judge of the supreme, superior, district, or probate court; a retired judge who is recalled to judicial service; a full-time marital master; and any referee or special master who is an officer of the judicial system and who performs judicial functions.

Source. 2001, 267:3. 2002, 250:8, eff. May 17, 2002.

Section 494-A:3

    494-A:3 Executive Director; Appointment and Duties. –
I. The commission shall select and appoint an executive director as the administrator of the commission. The executive director shall be appointed by majority vote of the commission after 30 days public notice and a public hearing. The executive director shall hold office for a term of 5 years. The executive director may be removed from office by vote of 2/3 of the commission. The executive director may be reappointed using the same procedure for appointment. The executive director shall be a nonclassified state employee.
II. The executive director shall be the administrative head of the commission. The duties of the executive director shall also include:
(a) Employing and supervising commission staff, under RSA 494-A:17.
(b) Submitting an annual report to the governor, senate president, speaker of the house, and chief justice of the supreme court, by October 1 of each year, which details the performance of the commission for the preceding fiscal year. This report shall be a public document.
(c) Submitting budgets to be funded through general funds in the biennial operating budget.
(d) Acting as secretary for all commission meetings.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:4

    494-A:4 Commission Membership. –
The commission shall consist of the following 11 members:
I. Three judges, consisting of one judge or retired judge from each of the superior court, district court, and probate court, appointed by the chief justice of the supreme court with the concurrence of the majority of the supreme court members.
II. Two members appointed by the president of the New Hampshire Bar Association; one member to be approved by the governor and one member to be approved by the president of the senate and the speaker of the house.
III. Two public members who are not judges, attorneys, or elected or appointed public officials, appointed by the governor.
IV. Two public members who are not judges or attorneys, appointed by the senate president.
V. Two public members who are not judges or attorneys, appointed by the speaker of the house.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:5

    494-A:5 Terms of Office. –
I. The initial terms of office shall be staggered as follows:
(a) For the members appointed under RSA 494-A:4, I, one member shall be appointed for 2 years, one member shall be appointed for 3 years, and one member shall be appointed for 4 years.
(b) For the members appointed under RSA 494-A:4, II, one member shall be appointed for 3 years and one member shall be appointed for 4 years.
(c) For the members appointed under RSA 494-A:4, III, one member shall be appointed for 3 years and one member shall be appointed for 4 years.
(d) For the members appointed under RSA 494-A:4, IV, one member shall be appointed for 2 years and one member shall be appointed for 3 years.
(e) For the members appointed under RSA 494-A:4, V, one member shall be appointed for 3 years and one member shall be appointed for 4 years.
II. After the initial appointment, a member may be reappointed for an additional term of 4 years. Members may not serve more than 2 consecutive terms. Members who have served 2 consecutive terms may not be reappointed until they have been off the commission for a period of 4 years. Notwithstanding the term limits established in this paragraph, members may serve until their successors have been appointed.
III. Commission members shall serve without compensation for their services, but shall be reimbursed for necessary expenses incurred in the performance of their duties.

Source. 2001, 267:3. 2002, 250:9, eff. May 17, 2002.

Section 494-A:6

    494-A:6 Vacancies. –
I. A vacancy in the office of the commission occurs:
(a) At the expiration of a member's term.
(b) When a member ceases to hold the office, by submitting his or her resignation to the commission, or for some other reason.
(c) When a non-attorney or non-judge member becomes an attorney or judge.
(d) When an attorney member ceases to be a member of the New Hampshire bar, is elected or appointed to public office, or is appointed a judge.
(e) When a member ceases to be domiciled in New Hampshire.
(f) When removed by the commission as provided in RSA 494-A:16.
II. A vacancy shall be filled by the same appointing authority. The successor shall have the same qualifications as the person who is being replaced. If the vacancy results from other than expiration of the term, the successor shall hold office for the unexpired term.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:7

    494-A:7 Disqualification. –
I. No member shall participate in any proceeding before the commission involving his or her conduct or in which he or she is a witness or is otherwise involved.
II. No member shall participate in any proceeding in which his or her impartiality might reasonably be questioned.
III. If a member is disqualified under this section, the commission may vote to name an alternate in his or her place.
IV. If the entire commission is disqualified under this section, the appointing authorities under RSA 494-A:4 shall name alternates.

Source. 2001, 267:3. 2002, 250:12, eff. May 17, 2002.

Section 494-A:8

    494-A:8 Numbers for Quorum and Action. – Six members of the commission shall be a quorum. Six members shall be necessary to take routine action. A vote of 7 members shall be required to take or recommend any disciplinary action.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:9

    494-A:9 Election of Chairperson and Vice Chairperson. – The members of the commission shall elect their own chairperson and vice chairperson.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:10

    494-A:10 Duties; Proceedings. –
I. The commission shall be responsible for addressing complaints concerning the conduct of judges and clerks in the courts of this state. The commission shall determine if a complaint constitutes conduct which violates the Code of Judicial Conduct. The commission shall adopt rules for its proceedings under this chapter. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. If the commission finds evidence of criminal acts, it shall report such evidence to the attorney general. If the commission finds that a judge's or clerk's conduct warrants the removal of the judge or clerk, the commission shall refer the matter to the legislature.
II. The commission shall, by rules under RSA 494-A:12, adopt a Code of Judicial Conduct based on the Model Code of Judicial Conduct (August 1990), as adopted by the House of Delegates of the American Bar Association on August 7, 1990. The Code also shall address the professional conduct of clerks as defined in RSA 494-A:2, I.

Source. 2001, 267:3. 2002, 250:10, eff. May 17, 2002.

Section 494-A:11

    494-A:11 Procedures for Complaints; Public Availability. –
The commission shall adopt rules of procedure to be followed in making its determinations which shall incorporate the following:
I. When a complaint is received by the commission, the commission shall determine if the complaint alleges a violation of the Code of Judicial Conduct. If the commission determines that the complaint on its face alleges no violation of the Code of Judicial Conduct, the commission shall dismiss the complaint and respond to the complaining party, explaining the basis for its decision. If the commission determines that the complaint alleges a violation, the commission shall send a copy of the complaint to the judge or clerk and the judge or clerk shall have 21 days to respond in writing. There shall be no direct communications between the judge or clerk and the complaining party. Following the response from the judge or clerk, the commission shall send a copy of the response to the complaining party. The commission may also conduct such further investigation as it may deem necessary before ruling on the complaint. The commission shall, within 90 days of the first meeting following receipt of the complaint, or for good cause shown, such longer period as determined by the commission, determine whether there is probable cause to believe that the judge or clerk has committed a violation of the Code of Judicial Conduct. If not, the complaint shall be dismissed. If so, the commission shall proceed to make a final determination as to whether a violation has occurred. In any event, the complaining party and the judge or clerk shall be informed of the ruling on probable cause along with a brief explanation of the basis of the decision.
II. After making a finding of probable cause, the commission shall conduct a public hearing before making a final determination. After probable cause has been found, the complaint, response, transcripts, findings, deliberations, and reports of actions taken shall be available to the public under the provisions of RSA 91-A. The exemption regarding internal personnel practices in RSA 91-A:5, IV shall be inapplicable to proceedings or documents under this paragraph relating to a complaint before the commission.
III. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. The commission may recommend that the supreme court suspend the judge or clerk.
IV. If the complaint referred to the commission alleges conduct that would constitute a crime, the commission chairperson shall immediately refer the matter to the attorney general. The referral of such a complaint to the attorney general shall not supersede the commission's jurisdiction relative to whether a violation of the Code of Judicial Conduct has occurred. However, the commission shall suspend its activities until the criminal proceedings, if any, are concluded.
V. In all cases, whether a complaint is dismissed or not, complaints received by the commission shall be made available to the administrative judge of the court in which the judge or clerk complained against holds office. Furthermore, all complaints against judges and clerks received by the administrative judges and other judges of the superior court, the district court, and the probate court shall be forwarded to the commission.
VI. The statute of limitations for any complaint shall be 3 years from the act which is the subject of the complaint or from the conclusion of the trial or appeal during which the act occurred, whichever is later.

Source. 2001, 267:3. 2002, 250:11, eff. May 17, 2002.

Section 494-A:11-a

    494-A:11-a Access to Information; Hearings on Confidential Cases. –
I. Notwithstanding any other provision of law to the contrary, a person subject to the code of judicial conduct may provide to the members of the judicial conduct commission, its staff and agents, and in the performance of its official duties the judicial conduct commission may review, any tapes, transcripts, records of proceedings, information, files, and other documents which would otherwise be confidential. No member, staff, or agent of the judicial conduct commission shall disclose such information except in the course of official duty.
II. In a hearing under RSA 494-A:11, II if any part of the complaint involves the conduct of a person in a case required to be confidential by law, the commission may, by majority vote, conduct the hearing, or any part thereof, in a session not open to the public. In such circumstances the commission shall make available to the public a summary of the nature of the complaint, the names of the person complained against and the complainant, and the decision of the committee.

Source. 2003, 147:1, eff. June 17, 2003.

Section 494-A:12

    494-A:12 Rules. – The commission shall have the authority to adopt rules, after public notice and hearing, necessary to perform the objectives of this chapter. The commission shall employ the rules used by the supreme court on the effective date of this chapter as interim rules, to the extent that they are not inconsistent with this chapter. The commission shall adopt its own rules as soon as practicable which shall replace such interim rules, but in no event later than July 1, 2002. Prior to the adoption of any rule, or the amendment or repeal thereof, the commission shall publish or otherwise circulate notices of its intended action and afford interested parties the opportunity to submit comments either orally or in writing.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:13

    494-A:13 Subpoena Power. – The commission shall have the powers of subpoena.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:14

    494-A:14 Appeals. – 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.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:15

    494-A:15 Funding. – The commission shall prepare and administer its own budget, including funding for such items as staff, office space, and operating expenses. Funding shall be authorized by the legislature only from sources other than those appropriated for the judicial branch.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:16

    494-A:16 Removal. – The chairperson, with the majority of the commission, may remove a member for cause, including unexcused absences or serious violations of a commission rule.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:17

    494-A:17 Staff and Facilities. –
I. The executive director shall, with the approval of the commission, hire staff, which may include attorneys, investigators, and clerks, as may be necessary to carry out the duties of the commission. The executive director may contract for such temporary professional, administrative, and clerical services as deemed necessary by the commission. Full-time staff shall be nonclassified personnel who shall be entitled to state employee benefits.
II. The commission shall select office space, which shall be as independent as possible from other facilities of any branch of government.

Source. 2001, 267:3, eff. July 1, 2001.

Section 494-A:18

    494-A:18 Administrative Support. – Notwithstanding RSA 494-A:1, upon request of the commission, the department of administrative services shall assist the commission in matters related to personnel and benefits administration, purchasing, telecommunications, enterprise applications management, and property management. Upon request of the commission, the state library shall assist the commission in development and maintenance of a web page on the official state website.

Source. 2002, 250:6, eff. May 17, 2002. 2022, 138:8, eff. Aug. 6, 2022.

Section 494-A:19

    494-A:19 Legal Costs. – With the approval of the joint legislative fiscal committee, the commission may employ counsel, attorneys, and other assistants, in case of reasonable necessity, and may pay them reasonable compensation. The governor is authorized to draw a warrant for the costs of such compensation out of any money in the treasury not otherwise appropriated.

Source. 2002, 250:6, eff. May 17, 2002.