Judicial Discipline Popular in Senate

By Josh Rogers on Thursday, May 10, 2001.

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The State Senate last night passed a plan to create a more independent judicial conduct committee, or JCC.

While the proposal won unanimous support from senate lawmakers, many court critics say the plan is fundamentally flawed.

NHPR's Josh Rogers has more.

On a day when most votes split neatly on party lines..The seemingly universal appeal of Senate Bill 197 prompted a rare moment of levity.

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Bill sponsor, Bristol Republican Ned Gordon, says the proposal follows three main principles.
The JCC should be independent of the New Hampshire Court system and other branches of government. Members should be appointed by several authorities. By the Governor, the senate president, the speaker of the house, pres. Of the NH bar association. And in keeping with itï¿½s independence and vigorous professionalism, the commission must be free to have itï¿½s own staff and separate offices from the court.

The plan follows the recommendations of a special task force formed last year in the wake of the impeachment of Supreme Court Chief Justice David Brock. Task force chairman, attorney Jack Sanders testified yesterday that the key to an independent review of judges is the people who sit on the review committee.
How do people get appointed to itï¿½. And the fact that we have all three branches of government making the recommendations for the appointments is whatï¿½s most important.

But according to Enfield Representative Paul Mirsky, Sanders has it completely wrong. Mirsky says the new plan perpetuates a faulty reading of the constitution thatï¿½s been in place ever since lawmakers first created the jcc.
I think thereï¿½s an inherent conflict in the governor appointing members of the committee since she appoints judges. And I also think that conflict extends to the supreme court nominating members of this body, and I also think it extends to the members of the bar association making nomination. I think given that under part 2 article 4 of the constitution, itï¿½s only the legislature that appointing authority.

Governor Jeanne Shaheen raised other constitutional concerns. The Governor supports JCC reform, but warned of the reality that the court could, absent a constitutional amendment, essentially reject the proposal as an infringement on itï¿½s own rulemaking authority.
Given the current constitutional provision there has to be some cooperation between the court and the legislature in setting up an independent commissionï¿½..

Legal reform activist Theo Kamasinski says thereï¿½s little reason to believe that cooperation is necessarily in the cards. The court came out with its own reform plan two days ago. Kamashinski says the Senate proposal needs to go substantially farther to achieve a truly independent disciplinary commission.

The proposed legislation continues the practice of including part0time legal professional as members of this commission. And at the very least the appearance of a conflict of interest will be perceived by the public when a lawyer-member appears before the very individuals he regulates.

And while the senate claims it addressed such concernes by adoptiong language that would require restricting jcc membership only to lawyers whose priceices donï¿½t require them to appear in court, the issue is sure to come up again when the house hears its own proposal. That plan is expected to be take a tougher line. Many house lawmakers want to put conrol of the jcc under the authority of the legislature.