Court to Decide Who Will Judge State Judges

By Katharine Webster
The Associated Press
Concord Monitor
May 12, 2004

New Hampshire - Who will judge the judges?

For three years, both the Legislature and the judiciary have claimed the right. Now, the state Supreme Court must decide whether its own Judicial Conduct Committee or the rival Judicial Conduct Commission established by the Legislature is legitimate.

Supporters of the former say the Legislature is trespassing on essential court powers, violating the state constitution's separation of powers. They also say the rival committee was set up three years ago partly as payback for the court's unpopular Claremont decision, which required the state to pay for schools.

But critics of the court committee, which disciplined unethical judges for more than two decades, say it performed so poorly it needs to be replaced.

They cite ethical breaches at the Supreme Court that led to the resignation of one justice and the impeachment of the chief justice in 2000, as well as the committee's failure to stop part-time Judge John Fairbanks from stealing millions of dollars from his private law clients a dozen years ago.

Concern about judicial ethics came to a head in 2000 when Justice Stephen Thayer resigned over accusations he interfered in his own divorce case and then-Chief Justice David Brock was impeached (and later acquitted) over allegations that such conflicts of interest

In the aftermath, a task force recommended making the Judicial Conduct Committee independent of the court, with its own staff and funding, and making the court share the power to appoint the committee's members with the governor, the Bar Association and leaders of the House and Senate.

The court endorsed the plan in 2001 and tried to carry it out. But the Legislature refused to pay for it. Instead, it passed a law setting up the virtually identical Judicial Conduct Commission.

The law said the commission should adopt its own code of conduct, a direct challenge to the court's rule-making authority.

The court responded by keeping its committee in place.

Both boards accepted and resolved complaints for two years. Then, last year, the Legislature decreed that all complaints go to the commission starting Jan. 1.

The Supreme Court is scheduled to hear oral arguments today on which committee is legitimate.

"Somewhere along the way, (the independent commission) got hijacked by the Legislature," said Anthony McManus, executive secretary of the court committee. "It was during the period of time when there was a lot of butting heads between the Legislature and the courts."

The committee claims the law creating the commission violated the court's constitutional power to administer lower courts and make court rules with the force of law.

Associate Attorney General Ann Larney, who will defend the law, argues that disciplining judges is a shared responsibility among the branches.

The commission set up by the Legislature can recommend censure or reprimand for unethical judges, but judges can appeal to the Supreme Court. The commission must refer possible crimes to prosecutors and ethics violations to an administrative judge. And nothing prevents the Supreme Court from suspending or otherwise disciplining judges, she said.

"There is no seizure of the judiciary's power of general superintendence over the courts," she wrote in a court filing. "There is some overlapping of power among all three branches."

Scherr is skeptical. When both committees operated, the Legislature could argue it wasn't usurping court authority, he said. But when they cut off complaints to the court committee, legislators effectively said, "We're going to take exclusive control of this," Scherr said.

The case is one of three to be heard this year involving legislative authority over the courts.

http://www.cmonitor.com/apps/pbcs.dll/article?AID=/20040512/REPOSITORY/405120339/1001