N.H. R. Sup. Ct. 40

As amended through December 30, 2024

Rule 40 - Procedural Rules of Committee on Judicial Conduct

(1)Applicability.

All proceedings of the committee on judicial conduct, created by Supreme Court Rule 39, shall be governed by these rules.

(2)Definitions.

As used herein, the following terms shall have the following meanings:

Answer - The response filed by a judge to a complaint or statement of formal charges.

Caution - Non-disciplinary action taken by the committee when it is believed that the judge acted in a manner which involved behavior requiring attention although not constituting clear violation of the Code of Judicial Conduct warranting disciplinary action. A caution may include recommendations concerning prudent future conduct, and may be issued at any stage of the proceedings with or without the consent of the judge. After a caution is issued, the judge shall have the opportunity to submit a reply within 30 days from the date of notification. Any caution or reply shall be available for public inspection consistent with Rule (16).

Code of Judicial Conduct - The Code of Judicial Conduct, as adopted by the New Hampshire Supreme Court in Rule 38, as the same may from time to time be amended.

Committee Counsel - Counsel engaged by the committee to assist it prior to the filing of formal charges.

Committee - The New Hampshire Supreme Court Committee on Judicial Conduct.

Committee Chair - The chair of the committee, or, in the absence of the chair, the vice-chair of the committee.

Complaint - A report of alleged misconduct that is docketed by the committee after being reviewed and determined to be against a judge and to satisfy the requirements for docketing as a complaint as set forth in section (5)(c), or a complaint which is drafted and docketed by the committee in accordance with section (7)(b) after a committee-initiated inquiry.

Court - The New Hampshire Supreme Court.

Discipline - Any disciplinary action authorized by this rule in a matter in which misconduct in violation of the Code of Judicial Conduct is found to warrant disciplinary action.

Formal Discipline - Discipline imposed pursuant to a Statement of Formal Charges and after a hearing and a finding of misconduct, where the committee determines that the violation is of a serious nature warranting formal disciplinary action by the Court, including a suspension.

Hearing - The proceedings which follow a statement of formal charges.

Hearing counsel - Counsel engaged by the committee to prosecute formal charges before the committee or disciplinary proceedings in this court. A lawyer who has served as committee counsel in connection with a matter may, in appropriate circumstances and in the committee's discretion, be engaged to serve as hearing counsel. Hearing counsel, after being appointed as such, shall have no ex parte communications with the committee.

Inquiry - A preliminary investigation begun by the committee on its own initiative to determine whether its findings should be docketed as a complaint.

Investigation - Fact gathering by or under the direction of the committee with respect to alleged misconduct.

Investigator - Any person designated by the committee to assist it in the investigation of alleged misconduct.

Judge - This term includes the following members of the State of New Hampshire Judicial Branch:

(1) a full-time or part time judge of any court or division;

(2) a full-time or part-time marital master;

(3) a referee or other master; and

(4) when performing an adjudicatory function, a clerk of court or deputy clerk, including a register of probate or deputy register, and any person performing the duties of a clerk or register on an interim basis. Not everyone who is a "judge" as defined herein is bound by every canon of the Code of Judicial Conduct -- the Code of Judicial Conduct applies to a judge to the extent provided in Supreme Court Rule 38.

Misconduct - Conduct on the part of a judge that is contrary to the Code of Judicial Conduct.

Proceeding - Each step taken or which may be taken under these rules with respect to a report of alleged misconduct filed with the committee alleging misconduct of a judge, or with respect to an inquiry concerning the conduct of a judge which the committee has initiated on its own motion.

Report of Alleged Misconduct - A written allegation of misconduct against a judge, which is filed with the committee.

Reporter - A person who communicates a report of alleged misconduct to the committee.

Reprimand - An official written warning or admonition imposed after a finding of misconduct.

Resolution without formal discipline - Discipline imposed by the committee when it determines that the judge has violated the Code of Judicial Conduct but that the violation is not of a sufficiently serious nature to warrant the imposition of formal discipline by the court. Sanctions may include issuance of a reprimand, requiring corrective action, directing professional counseling or assistance, imposing conditions on the judge's conduct, or other similar action. It is issued with the consent of the judge or without consent after a hearing. The consent of the judge to resolution without formal discipline shall constitute a waiver of the judge's right to a hearing.

Rule - The provisions of Supreme Court Rule 40.

Statement of Formal Charges - A formal pleading served under section (9) of this rule by the committee.

Suspension - The temporary prohibition of a judge from exercising judicial authority for the period of time specified by the court. A suspended judge shall have the right to resume the exercise of judicial authority, after the expiration of the suspension period, upon compliance with all of the terms and conditions set forth in the suspension order promulgated by the court. As a term of suspension, the court may order that the judge's salary be suspended.

(3)Confidentiality of Proceedings.

(a) As provided in this section, all proceedings and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. No member of the committee or its staff and no employee of the committee 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.

(b) The Reporter and Judge shall keep confidential the fact that a report of alleged judicial misconduct has been filed with the committee, including any action taken by the committee, until either the report is dismissed, a statement of formal charges is prepared and filed as described in section 9(a) of this rule, or the committee has disposed of the report by taking appropriate remedial action. Nothing in these rules, however, shall prohibit the Reporter and Judge from disclosing, in an underlying court case, such information about these proceedings as justice requires or to comply with the Code of Judicial Conduct, or prohibit a Judge from disclosing to third parties, such information as is necessary in the preparation of any required responses to the committee during these proceedings.

(c) Report of Alleged Misconduct not against a Judge or not Satisfying Requirements for a Complaint.

(1) In accordance with section (5)(d), a report involving a person who is not subject to the Code of Judicial Conduct shall be dismissed and returned to the reporter with a letter explaining the reason for the dismissal. The person who is the subject of the report shall not be notified of it. No file on the report will be maintained; however, the committee shall retain a copy of the letter to the reporter returning the report, which shall be available for public inspection in accordance with section (16)(a).

(2) In accordance with section (5)(d), a report that fails to comply with the requirements for docketing as a complaint shall be dismissed. All records and materials relating to such a report shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with section (16)(b) after correspondence is sent to the judge who is the subject of the report and that judge has the opportunity to provide a reply to be filed in the public record in accordance with section (5)(d)(2). The judge's reply shall be filed in the public record.

(d) Report of Alleged Misconduct Docketed As A Complaint. All records and proceedings relating to a report of alleged misconduct which is docketed by the committee as a complaint after it has been determined by the committee that the report is against a judge and satisfies the requirements for docketing as a complaint shall be available for public inspection (other than work product, internal memoranda, and deliberations) upon the earliest of the following:

(1) Upon preparation and filing of a statement of formal charges, the committee's file (other than work product, internal memoranda, and deliberations), the hearing, and the committee's disposition shall be public. The committee's deliberations shall be confidential.

(2) If a matter against a judge is resolved without formal discipline, the committee shall inform the reporter of such disposition, and the committee's file (other than work product, internal memoranda, and deliberations), including the committee's disposition, shall be public. If the judge shall thereby have received three or more dispositions that are resolved without formal discipline during the preceding five years, the following also shall be, after notice to the judge, available to the public: the prior complaints or notices of inquiry, the judge's responses, and the committee's findings and dispositions in all of the prior proceedings.

(3) If the committee, at any stage of a proceeding, dismisses a complaint after it has been docketed or dismisses formal charges, the committee shall inform the reporter of such disposition, and the committee's file (other than work product, internal memoranda, and deliberations) including the committee's disposition, shall be public. If the judge has not previously been notified of the complaint, the committee's file shall be made available for public inspection after correspondence is sent to the judge who is the subject of the complaint and that judge has the opportunity to provide a reply to be filed in the public record. In addition, the committee may, at the request or with the consent of the judge concerned, issue a short explanatory statement to the public.

(e) If a judge is publicly charged, through independent sources, with involvement in a proceeding before the committee, or publicly charged with conduct likely to become the subject of such a proceeding, the committee may, at the request or with the consent of the judge involved, issue brief public statements as it deems appropriate in order to confirm or deny the pendency of the proceeding, to clarify the procedural aspects thereof, to explain the right of the judge to a fair hearing without prejudgment, and to state that the judge denies the allegations.

(f) If the pendency of a proceeding before the committee is generally known to the public, through independent sources, and the subject matter thereof is of broad public interest or speculation, and public confidence in the administration of justice may be threatened because of lack of information concerning the status of the proceeding and the requirements of due process, the committee may, after consultation with the chief justice or the senior associate justice of the supreme court, issue brief statements as it may deem appropriate in order to confirm the existence of the investigation, to clarify the procedural aspects of the proceeding, to explain that the judge is entitled to due process, and to state that the judge denies the allegations.

(g) Protective order. Any person or entity may request from the committee, or the committee 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 committee. The committee shall act upon the request within a reasonable time. Within 30 days of the committee's decision on a request for protective order, or of the committee's issuance of one on its own initiative, an aggrieved person or entity may request that the supreme court review the matter. The material in question shall remain confidential after the committee has acted upon the request for protective order until such time as the supreme court has acted, or the period for seeking supreme court review has expired.

(h) This section shall not be construed to prohibit the committee from preparing and releasing to the public materials which are not related to any particular proceeding or situation. Such materials may include explanations of:

(1) The jurisdiction of the committee and the limitations upon its powers and authority;

(2) The procedure for filing reports of alleged misconduct; and

(3) The internal procedures of the committee.

In addition, the committee may release periodic statistical reports of its work.

(i) Nothing herein shall prevent the committee from responding to unjustified public criticism of a judge who is not the subject of a proceeding, and the committee may so respond in appropriate cases.

(j) Any violation of these provisions relating to the duty of confidentiality imposed by this rule may result in remedial action taken by the committee. Such action may consist of opening the file and the proceedings earlier than would have been the case under section (3); forfeiture of the provisions afforded to a Reporter under these rules with respect to notification and/or access to certain non-public information prior to the matter being made public; or such other remedial action as the committee may determine to be appropriate under the circumstances. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the chief justice or the senior associate justice of the supreme court of the matter. Notwithstanding the provisions of this rule, the committee 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, and further provided that the agency or commission shall maintain the confidentiality of the information provided to the fullest extent possible consistent with the carrying out of its official duties unless it obtains a written waiver of confidentiality from the reporter or complainant and any other person whose confidentiality is protected by this rule.

^{Supreme Court Comment - 2000 amendment.}

^{One of the protections of the confidentiality provision is that a grievant is not liable for good faith statements contained in a grievance or made in the course of proceedings.}

^{Nothing in the rule of confidentiality prevents a grievant from disclosing publicly the conduct of a judge which he or she believes violates the Code of Judicial Conduct or is otherwise inappropriate. The immunity from civil liability does not apply to such disclosures. The rule does prohibit a grievant, however, from disclosing publicly the fact that a grievance against the judge about the conduct has been filed with the committee until a statement of formal charges is prepared and filed as described in section 9(a) of this rule, a grievance that had been docketed as a complaint is disposed of by informal resolution or adjustment or is dismissed, or a grievance that has not been docketed as a complaint is disposed of by the committee.}

^{Once a grievance or complaint has been disposed of by the committee, a grievant may make a public disclosure concerning the filing of a grievance including the conduct complained of and the action of the committee, and the committee's file, with the exception of work product, internal memoranda, and deliberations, shall be public.}

(4)Report of Alleged Misconduct, Filing, Period of Limitation.

(a) Any person may file a report of alleged misconduct with the committee to call to the attention of the committee conduct that the reporter believes constitutes misconduct by a judge that should be investigated by the committee.

(b) A report of alleged misconduct shall be filed with the committee on judicial conduct by sending or delivering it to the committee. A report of alleged misconduct shall be deemed filed when received by the committee.

^Comment

^{The committee's address and telephone number are available on the Internet at the committee's website, which can be found at:}

^{http://www.courts.state.nh.us/committees/judconductcomm/index.htm}

(c) Period of Limitation. No disciplinary proceedings shall be commenced unless a report of alleged misconduct is filed with the committee or a committee-generated complaint is docketed by the committee under section (7)(b) of this rule within two (2) years after the commission of the alleged misconduct, except when the acts or omissions that are the basis of the report were not discovered and could not reasonably have been discovered at the time of the acts or omissions, in which case, the report must be filed within two years of the time the reporter discovers, or in the exercise of reasonable diligence should have discovered, the acts or omissions complained of.

Misconduct will be deemed to have been committed when every element of the alleged misconduct has occurred, except, however, that where there is a continuing course of conduct, misconduct will be deemed to have been committed beginning at the termination of that course of conduct.

(5)Committee Procedure After Receipt of Report of alleged misconduct.

(a) The executive secretary of the committee shall acknowledge receipt of a report of alleged misconduct in a timely fashion.

(b) A copy of the report shall be sent to each member of the committee. The committee shall review each report of alleged misconduct at a meeting of the committee to determine whether the report is against a judge and whether the report meets the requirements for docketing as a complaint.

(c) Subject to subsection (5)(c)(5) below, a report of alleged misconduct 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 report of alleged misconduct that relates to a judge's findings, rulings or decision, which, in effect, is a substitute for an appeal, will not be considered by the committee.

(b) A report of alleged misconduct which is repetitive of a prior report or complaint, 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 reporter under oath or affirmation. The following language, or language that is substantially equivalent, must appear above the reporter's signature: "I hereby swear or affirm under the pains and penalties of perjury that the information contained in this report of alleged misconduct is true to the best of my knowledge."

(4) It was filed with the committee within the period of limitation set forth in section (4)(c).

(5) Provided, however, that upon the vote of seven or more of its members, the committee may authorize a review of the court record to include the file and any recordings of proceedings to determine whether the court record supports the allegations in the report. After review, the committee may dismiss the report of alleged misconduct if it finds that in light of the court record, there is no reasonable likelihood of a finding of judicial misconduct. If the report of alleged misconduct is not dismissed, the committee shall direct that it be docketed as a complaint.

(6) At any stage of the proceedings, the committee may, for good cause, vote to hold in abeyance any matter pending before it for such period of time as it deems appropriate.

Under this provision, "good cause" may include as the committee deems appropriate providing an opportunity for the judge to undergo confidential evaluation under the supervision of the New Hampshire Lawyers Assistance Program (LAP) and to participate in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation, subject to supervision by LAP and any other conditions established by the committee.

The committee shall provide the Judge and Reporter timely notice of a decision to stay the proceedings, provided that, for good cause, the committee may vote to defer notification to the Judge or Reporter for such a period of time as it deems necessary.

(d) A report of alleged misconduct 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 committee shall notify the reporter in writing of the reason for the committee's action. In addition, the committee shall take the following action:

(1) If the committee determines that the person who is the subject of the report of alleged misconduct is not subject to the Code of Judicial Conduct, it shall return the report to the reporter with a letter explaining the reason for the dismissal. No file on the report of alleged misconduct will be maintained; however, the committee shall retain a copy of the letter to the reporter returning the report of alleged misconduct, which shall be available for public inspection in accordance with section (16)(a). The committee 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 report and shall advise the reporter of such referral.

(2) If the committee determines that the report of alleged misconduct does not allege conduct that violates the Code of Judicial Conduct, that the reporter lacks standing, that the report was not filed within the period of limitation, or that in light of the court record there is no reasonable likelihood of a finding of judicial misconduct, the judge who is the subject of the report of alleged misconduct shall be provided with a copy of the report and the decision of the committee 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 committee. The reply shall be available for public inspection in accordance with section (16)(b).

(e) Provided, however, that upon the vote of seven or more of its members, when a report of alleged misconduct is dismissed, either where the alleged conduct, if true, does not constitute a violation of the Code of Judicial Conduct, or where after a review of the court record pursuant to section 5(c)(5) the committee determines that there is no reasonable likelihood of a finding of judicial misconduct, the committee may issue a caution if it believes that the judge acted in a manner which involved conduct requiring attention. Consent of the judge shall not be required. Prior to the issuance of any caution, a copy of the report of alleged misconduct shall be forwarded to the judge who shall be afforded the opportunity to provide a written response or to appear before the committee; whichever the judge elects. Upon receipt of a written request from the reporter, a copy of any response shall be provided to the reporter.

(f) Notification to Administrative Judge. Whenever the executive secretary provides a judge with a copy of a report of alleged misconduct against such judge which has been dismissed, the executive secretary shall at the same time send a copy of the report to the chief justice or administrative judge of the court in which such person serves. In such instances, the chief justice or administrative judge shall send a copy of the report to the presiding justice of the particular court in which such person serves.

(6)Inquiries Initiated by Committee.

The committee may initiate an inquiry concerning the conduct of any judge on its own motion, without a signed written report of alleged misconduct, upon any reasonable factual basis. No such inquiry shall be initiated by the committee except upon the affirmative vote of six or more members of the committee taken at a meeting thereof. Notice of the initiation of an inquiry by the committee on its own motion shall be given to the judge by the committee at such time as it deems appropriate. The committee may delay giving such notice to the judge to avoid possible compromise of the inquiry and any resulting investigation or for other good reason. Unless the committee votes to docket a complaint against a judge in accordance with section (7)(b), all records of a committee-initiated inquiry shall be confidential.

Provided, however, that upon the vote of seven or more of its members, where the inquiry does not disclose conduct in violation of the Code of Judicial Conduct, or there is no reasonable likelihood of a finding of judicial misconduct, but the committee determines that the judge acted in a manner which involved conduct requiring attention, the committee may issue a caution. Consent of the judge shall not be required. Prior to the issuance of any caution, the judge shall be apprised of the conduct requiring attention and shall be afforded the opportunity to provide a written response or to appear before the committee, whichever the judge elects. Notwithstanding the above paragraph, any written caution issued herein, or response provided by the judge shall be public and subject to the same access as if issued after a report of alleged misconduct pursuant to paragraph 16(a).

(7)Docketing the Report of Alleged Misconduct As Complaint; Procedure Following Docketing of Complaint.

(a) Docketing of Report of Alleged Misconduct as Complaint. If the committee determines that a report 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 Committee-generated Complaint. If, after undertaking and completing an inquiry on its own initiative in accordance with section (6), the committee 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 secretary 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 committee. Unless a shorter time is fixed by the committee and specified in such notice, the judge shall have 30 days from the date of such notice within which to file his or her answer with the committee. Such answer shall be filed with the executive secretary, who shall, upon receipt of a written request from the reporter, provide to the reporter a copy of the judge's response. In addition to the required answer, the judge may submit to the committee such other matters as the judge may choose.

Whenever the executive secretary provides a judge with a copy of a complaint against such judge, the executive secretary 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 shall send a copy of the complaint to the presiding justice of the particular court in which such person serves.

(d) 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 committee may undertake an investigation of any complaint properly before it upon the affirmative vote of seven or more members of the committee 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.

(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 chair may require that any statement or written information furnished to the committee or its employees be given under oath or affirmation subject to the penalties for perjury or false swearing in official proceedings pursuant to RSA chapter 641.

(d) Persons contacted for information shall be informed of their obligation to maintain confidentiality as set forth in section (3).

(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 committee for assistance and cooperation in the conduct of any investigation by the committee.

(f) During the course or upon completion of an investigation, or if the committee determines that no investigation is necessary, the committee may take the following actions:

(1) If the alleged conduct does not constitute a violation of the Code of Judicial Conduct, the complaint shall be dismissed. If the committee believes that the judge acted in a manner which involved behavior requiring attention a caution may also be issued, with or without the consent of the judge.

(2) The matter may be resolved without formal discipline with the consent of the judge. Such resolution may take the form of a written reprimand, the requirement of remedial action, or the imposition of conditions, or any combination thereof. The committee 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 a resolution without formal discipline.

(3) If the matter has not been dismissed or resolved without formal discipline, the committee shall determine whether there is probable cause to warrant formal proceedings. If the committee does not determine that the investigation has disclosed probable cause to warrant formal proceedings, the committee shall dismiss the complaint or terminate the inquiry. If the committee believes that the judge acted in a manner which involved behavior requiring attention a caution may also be issued, with or without the consent of the judge.

(4) The judge and reporter (if any) shall be notified of any action taken. Prior to the issuance of any caution, the judge shall be afforded the opportunity to appear before the committee or file a supplemental response, whichever the judge elects. Upon receipt of a written request from a reporter, a copy of any supplemental response shall be provided to the reporter.

(5)

(A) If the matter has not been dismissed or resolved without formal discipline and the committee determines that (1) there is probable cause to believe that misconduct, as specified in the complaint, occurred; and (2) that any misconduct was the result of substance misuse or mental health disorder; and (3) that the conduct is not so serious in nature as to warrant formal discipline by the supreme court, the committee and the judge may agree that the judge undergo confidential evaluation under the supervision of LAP. Should the evaluation reveal the existence of a condition for which treatment is appropriate, the committee may thereafter defer resolution of the complaint. A deferred resolution would require the judge to participate in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation and subject to supervision by LAP and any other conditions established by the committee.

A deferral agreement must include the contemplated resolution of the complaint if the judge successfully complies with the terms of the agreement. At the end of the deferral period the judge would bear the burden to demonstrate that he or she has successfully complied with the terms of the deferral. Upon successful completion of the deferral agreement, the complaint would be resolved upon the terms set forth in the deferral agreement. If the judge does not successfully complete the terms of the deferral, the committee may proceed upon the complaint. Additionally, the committee may bring forward the complaint at any time prior to successful completion of the terms of deferral upon determining that the judge is not participating in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation or failing to comply with other conditions established by the committee. Prior to the complaint being brought forward, however, the judge shall be afforded an opportunity to appear before the committee to demonstrate that he or she has successfully complied with the terms of the deferral. The committee may also initiate an inquiry or complaint based on any new rule violations which may have occurred during the deferral period.

Every deferral agreement shall be reduced to writing, shall provide for periodic reporting by LAP to the committee regarding the judge's compliance or noncompliance, and shall be signed by the judge and the chair of the committee. A copy of the agreement will be given to the judge; the original shall be maintained in the committee's file.

(B) All statements made by or for a judge in the course of discussions or negotiations with the committee regarding referral to LAP or in the course of his or her involvement in or assessment supervised by LAP, including statements made in connection with any evaluation, treatment, counseling, or after-care, shall be privileged and inadmissible as either substantive evidence or impeachment evidence against the judge.

(C) The committee may vote to defer notification to the Reporter of deferred resolution for such period of time as it deems necessary. Notwithstanding any other provisions of Rule 40(3) to the contrary, if the committee resolves a report or complaint by way of a deferral agreement, the committee may enter a protective order pursuant to Rule 40(3)(g) sealing any parts of the record that would otherwise be public.

(9)Statement of Formal Charges, Notice of Hearing and Answer.

(a) If, after investigation the committee concludes, by the affirmative vote of seven or more members taken at a meeting, that probable cause to warrant formal proceedings exists, it shall prepare and file a formal statement of charges and shall set a time and place of hearing before itself. The committee 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 committee is proceeding on the basis of a complaint based upon a written report of alleged misconduct or upon a committee-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 thirty 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 committee 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 committee 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 committee shall give notice to the reporter, if any, of the date, time, and place of the hearing. The reporter 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 thirty days after receipt of the formal statement of charges, the judge shall file an answer with the executive secretary, 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 committee 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 thirty days without the concurrence of the committee.

(i) Following the answer by the judge, or at any time thereafter, the committee may terminate the proceeding and dismiss the complaint and formal statement of charges, with or without a caution, or with the consent of the judge resolve the matter without formal discipline, and shall give notice to the judge and the reporter.

(j) The judge and reporter (if any) shall be notified of any action taken. Prior to the issuance of any caution, the judge shall be afforded the opportunity to appear before the committee or file a supplemental response, whichever the judge elects. Upon receipt of a written request from a reporter, a copy of any supplemental response shall be provided to the reporter.

(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 committee to have relevant information;

(2) to examine and copy any of the following:

(A) statements of the reporter;

(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 committee 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 committee 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 report of alleged misconduct, unless the alleged misconduct was directed at the informant.

(b) The judge shall make available to the committee, as a matter of course, upon the written request of the chair, executive secretary, or hearing counsel, any specified material which would be discoverable in civil proceedings in this State. The committee 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 committee may move to compel discovery before a justice of the supreme court.

(e) Witnesses may be summoned by subpoena issued by an attorney member or judicial member of the committee upon request of the committee or the judge whose conduct is being investigated. An attorney member or judicial member of the committee 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 committee may apply to a justice of the supreme 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 committee 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 committee 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 committee 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 committee in advance of any unfavorable action.

(f) The committee 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 committee present at the hearing.

(g) The hearing shall be recorded verbatim by stenographic, electronic, or other means approved by the committee. A transcript of the hearing shall be provided to the judge without cost.

(h) The decision of the committee shall be based solely on the record evidence presented to the committee at the hearing, but shall not be based solely on hearsay evidence. The committee 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 committee may reopen the hearing for the taking of additional evidence. The judge and the reporter shall be given such notice of any such supplemental session as the circumstances may reasonably require.

(j)Photographing, Recording and Broadcasting.

(1) Except as otherwise provided by this rule or by other provisions of law, any person, whether or not a member of an established media organization, shall be permitted to photograph, record, and broadcast all proceedings that are open to the public, provided that such person provides advance notice to the committee in accordance with section (3) of this rule that he or she intends to do so. No person shall photograph, record or broadcast any proceedings without providing advance notice to the committee that he or she intends to do so. In addition to giving any parties in interest an opportunity to object, the purpose of the notice requirement is to allow the committee to ensure that the photographing, recording, or broadcasting will not be dispuptive to the proceedings and will not be conducted in such a manner or using such equipment as tviolate the provisions of this rule.

(2) Official court reporters, court monitors, and other persons employed or engaged by the committee to make the official record of any proceeding may record such proceeding by video and/or audio means without compliance with the notice provisions of section (1) of this rule.

(3) Any person desiring to photograph, record or broadcast any proceeding, or to bring equipment intended to be used for theses purposes into a hearing room, shall submit a written request to the committee before commencement of the proceeding, or if the proceeding has already commenced, at the first reasonable opportunity during the proceeding, so the committee before commencement of the proceeding, or at an appropriate time during the proceeding, may give all interested parties a reasonable opportunity to be heard on the request.

(4) Any party to a proceeding or other interested person who has reason to believe that a request to photograph, record or broadcast a proceeding will be made and who desires to place limitations beyond that specified by this rule upon these activities may file a written request seeking such relief. The request shall be filed as far in advance of the proceeding as practicable. Upon the filing of such a request, the committee may schedule a hearing as expeditiously as possible before the commencement of the proceeding and, if a hearing is scheduled, the committee shall provide as much notice of the hearing as is reasonably possible to all interested parties and to the Associated Press, which shall disseminate the notice to its members.

(5) The committee shall not establish notice rules, requirements or procedures that are different than those established by this rule.

(6) At any hearing conducted pursuant to subsections (3) or (4) of this rule, the party seeking to prohibit or impose restictions beyond the terms of this rule on the photographing, recording or broadcasting of a proceeding that is open to the public shall bear the burden of demonstrating:

(1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted;

(2) that the relief sought is no broader than necessary to protect that interest; and

(3) that no reasonable less restrictive alternatives are available to protect the interest. Any order prohibiting or imposing restictions beyond the terms of this rule upon the photographing, recording or broadcasting of a proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the committee's action.

(7) The committee retains discretion to limit the number of cameras, recording devices, and related equipment allowed in the hearing room at one time. In imposing such limitations, the committee may give preference to requests to photograph, record or broadcast made by a representative of an established media organization that disseminates information concerning court proceedings to the public. The committee may also require representatives of the media to arrange pool coverage.

(8) It is the responsibility of representatives of media organizations desiring to record, photograph or broadcast a proceeding to contact the executive secretary in advance of a proceeding to determine if pool coverage will be required. If the committee has determined that pool coverage will be required, it is the sole responsibility of such media representatives, with assistance as needed from [the] executive secretary, to determine which media organization will provide the coverage feed. Disputes about pool coverage will not ordinarily be resolved by the committee, and the committee may deny media organizations' requests to record, photograph or broadcast a proceeding if pool agreements cannot be reached. It is also the responsibility of said person[s] to make arrangements with the executive secretary sufficiently in advance of the proceeding so that the set up of any needed equipment in the hearing room, including equipment for pool coverage, can be completed without delaying the proceeding. The court shall allow reasonable time prior to the proceeding for the set up of such equipment.

(9) The committee shall make all documents and exhibits filed with the committee, and not sealed, available for inspection by members of the public in a reasonably timely fashion, it being recognized that the committee's need to make use of documents and exhibits for official purposes must take precedence over their availability for public inspection. The committee may elect to make one "public" copy of an exhibit available.

(10) The exact location of all recording, photographing or broadcasting equipment within the hearing room shall be determined by the committee. Once established, movement of such equipment within the hearing room is prohibited, without the express prior approval of the committee. The committee may prohibit the use of any equipment that requires the laying of cords or wires that pose a safety hazard or impair easy ingress and egress from the hearing room. All equipment used must operate with minimal noise so as to not disrupt the proceedings.

(11) Unless otherwise ordered by the committee, the following standing orders shall apply to all recording, photographing or broadcasting of proceedings within any hearing room:

(a) No flash or other artificial lighting devices shall be used.

(b) Set up and dismantling of equipment in a dispuptive manner while the committee is in session is prohibited.

(c) No recording, photographing or broadcasting equipment may be moved into, out of, or within the hearing room while the hearing is in session.

(d) Recording, photographing or broadcasting equipment must remain a reasonable distance from parties, counsel tables, alleged victims and their families, and witnesses unless such person(s) voluntarily approach the position where such equipment is located. No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between a lawyer and client or conferences held at the bench among committee members and counsel or the parties.

(e) All persons using recording, photographing or broadcasting equipment must abide by the directions of the committee at all times.

(f) Interviews within the hearing room are not permitted before or after a proceeding.

(g) A person who has been granted permission to record, photograph or broadcast a hearing shall not engage in any activity that distracts the participants or impairs the dignity of the proceedings.

^Comments:

^{With respect to subsection (3) of this rule, it is contemplated that such requests will be deemed timely if they are filed enough in advance of the proceeding that the comittee has an opportunity to read and consider the request, to orally notify all interested parties of its existence, and to conduct a brief hearing in the event that any interested party objects to the request. Given the strong presumption under New Hampshire law that photographing, recording, and/or broadcasting judicial conduct committee proceedings that are open to the public is allowable, this subsection is not intended to impose lengthy or onerous advance notice requirements; instead, it recognizes that frequently such requests will be filed only shortly before the proceeding in question is to begin.}

(12)Dispositions Following Hearing.

(a) The committee shall render its decision promptly after the hearing.

(b) If the committee decides that a violation of the Code of Judicial Conduct has not been established, the proceeding shall be dismissed, with or without a caution, and the judge, hearing counsel and the reporter shall be so notified.

(c)Violation Not Warranting Formal Discipline. If the committee determines, by the affirmative vote of at least seven 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 by the supreme court, it shall dispose of the matter by resolution without formal discipline, with or without consent of the judge. Such disposition may take the form of 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 committee 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 a resolution without formal discipline. If a proceeding is disposed of by resolution without formal discipline, the committee shall prepare a report of its findings and disposition, which shall be filed in the public docket of the committee. Any member who dissents from the determination of the committee may prepare a minority report which shall be appended to the report of the committee. A copy of the decision shall be sent to the judge and committee hearing counsel. Disclosure to the reporter shall be as provided in subsection (3)(d)(2) of this rule.

(1) If the judge disagrees with the findings or recommendations reached by the committee, the judge may, within 15 days of the notice of the decision of the committee, file a request with the supreme court for a de novo hearing. If such a request is filed, only the certified statement of formal charges and the judge's answer shall be filed with the court by the committee, and the supreme court shall appoint a judicial referee to conduct the hearing. The hearing shall be public. After hearing, the judicial referee shall issue a decision including any findings and recommendations for sanctions. The decision of the judicial referee together with any other pleadings and exhibits introduced at the hearing, shall be filed by the judicial referee with the supreme court which shall issue a notice of decision to the judge, committee hearing counsel and the committee. The supreme court shall order a transcript of the hearing before the judicial referee to be prepared and filed with the court.

(2) If the judge does not file a request for a de novo hearing within 15 days of the notice of decision of the committee, the findings and disposition of the committee shall be final. The committee shall file the report of its findings and disposition with the supreme court for informational purposes only.

(d)Violation Warranting Formal Discipline. If the committee determines, by the affirmative vote of at least seven of its members, that the judge complained against has violated the Code of Judicial Conduct and that the violation is of a serious nature so as to warrant formal disciplinary action by the supreme court, the committee shall prepare a summary report of the proceeding and of its findings which shall be filed in the public docket of the committee. Such report shall include the recommendations of the committee (if any) concerning the sanctions to be imposed. Any member who dissents from the determination of the committee may prepare a minority opinion which shall be appended to the report of the committee. A copy of the decision shall be sent to the judge and committee hearing counsel, and the committee shall also notify the supreme court that a decision finding serious judicial misconduct has been docketed. Disclosure to the reporter shall be as provided in subsection (3)(d)(2) of this rule.

(1) If the judge disagrees with the findings or recommendations reached by the committee, the judge may, within 15 days of the notice of the decision of the committee, file a request with the supreme court for a de novo hearing. If such a request is filed, only the certified statement of formal charges and the judge's answer shall be filed with the court by the committee, and the supreme court shall appoint a judicial referee to conduct the hearing. The hearing shall be public. After hearing, the judicial referee shall issue a decision including any findings and recommendations for sanctions. The decision of the judicial referee together with any other pleadings and exhibits introduced at the hearing, shall be filed by the judicial referee with the supreme court which shall issue a notice of decision to the judge, committee hearing counsel, and the committee. The supreme court shall order a transcript of the hearing before the judicial referee to be prepared and filed with the court.

(2) If the judge does not file a request for a de novo hearing within 15 days of the notice of decision of the committee, the committee shall immediately file its certified decision together with the statement of formal charges, the judge's answer and any other pleadings and exhibits with the supreme court. The supreme court shall order a transcript of the hearing before the committee to be prepared and filed with the court. The decision and record of the committee and all further proceedings before the court shall be public.

(13)Review by Supreme Court.

Upon receipt of a report of the findings and record of the proceedings before the committee under section 12(d)(2), or after a de novo hearing before a judicial referee under subsections 12(c)(1) and 12(d)(1), the supreme court shall set the matter down for briefing and oral argument which shall be open to the public. Any findings or discipline imposed under these three subsections shall not be final or in effect pending review by the court. At such oral argument the committee and the judge complained against shall have the opportunity to appear in person and/or by counsel. The supreme court shall file a written opinion and judgment determining whether the findings of fact are supported by the record, and directing such disciplinary action as it finds just and proper, or exonerating the judge complained against.

(13-A)Expenses Relating to Discipline Enforcement.

In all cases in which discipline is imposed, including cases resolved without formal discipline, all expenses incurred by the committee on judicial conduct in the investigation and enforcement of discipline may, in whole or in part, be assessed to a disciplined judge to the extent appropriate.

(14)Counsel Fees.

Upon application from a judge against whom formal charges have been brought, the committee may, in its discretion and subject to the availability of funds, pay such portion as it deems equitable of the fee and expenses of the judge's counsel. Within 30 days of the committee's decision on such an application, the judge may request that the court review the matter.

(15)Immunity.

All persons shall be immune from civil liability for all of their statements made in good faith to the committee or to the supreme court or given in any investigation or proceedings pertaining to a report of alleged misconduct or complaint against a judge. The protection of this immunity does not exist as to:

(a) any statements not made in good faith; and

(b) any statements made to others. The committee, its staff, counsel, and investigators shall be immune from civil liability for any conduct arising out of the performance of their duties.

(16)Public Access to Committee Proceedings and Records.

(a) Correspondence relating to a report of alleged misconduct against a person who is not subject to the Code of Judicial Conduct shall be available for public inspection for a period of two years. After this two-year period, the correspondence shall be sealed.

(b) All records (other than work product, internal memoranda, and deliberations) relating to a report of alleged misconduct against a judge that is not docketed as a complaint shall be maintained by the committee for two years from the date of filing, and shall be available for public inspection during this period. After this two-year period, the records shall be sealed.

(c) All records (other than work product, internal memoranda, and deliberations) relating to a report of alleged misconduct filed with the committee that is docketed as a complaint shall be retained by the committee and shall be available for public inspection in accordance with the provisions of this rule.

(d) The committee shall maintain an index of complaints docketed against each judge, which shall contain pertinent information, including the outcome of the complaint. No index of reports of alleged misconduct that are not docketed as complaints shall be maintained.

(17)Use of Closed Files.

A closed file may be referred to by the committee 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 without formal discipline, the judge fails to refrain from acting in the manner that caused the prior report of alleged misconduct or complaint to be filed and a subsequent report of alleged misconduct 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 committee 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 committee or as to the sanction to be recommended to the supreme court for imposition by the court.

N.H. R. Sup. Ct. 40

Amended on a temporary basis Apr. 4, 2014, eff. May 1, 2014; amended Nov.10, 2015., eff. Jan. 1, 2016; amended effective 7/1/2019; amended effective 9/30/2019; amended effective 1/1/2020; amended effective 3/10/2020; amended December 22, 2022, eff. 1/1/2023.