Guidance is sought on judging the judges

Sealing records sows confusion

By Shirley Elder, Globe Correspondent, 8/13/2000

embers of the Supreme Court's Judicial Conduct Committee will meet Thursday with chiefs of all state courts to try to find a way out of the hot water the JCC has gotten into lately.

But, whether the chiefs, sitting as the Administrative Council and charged with handling day-to-day operations of the courts, can help is a question. JCC members, led by vice chairman David Hodges, are hoping the council can recommend changes - perhaps even creation of a conduct committee independent of the Supreme Court.

The whole thing is a tangled tale, and comes at a time when it has become a popular local sport to attack judges and those who judge them, namely the Judicial Conduct Committee.

To the casual observer, it appears the JCC suddenly is trying to hide something - specifically, 19 of the 50 complaints filed against judges since April 1 - even as members say they really seek more openness in the whole process.

What the JCC actually accomplished, however, is confusion. It ordered the records sealed on the 19 grievances because members did not like new administrative rules that went into effect April 1, requiring public disclosure. So, the JCC is effectively operating under the old rules.

No one will comment publicly, but it is generally assumed those 19 complaints have been dismissed, and several were aimed at Supreme Court justices. Under the new rules, this information would become public within 30 days of JCC action. Under the old rules, it remains confidential.

On June 27, the committee petitioned the Supreme Court to suspend the new rules as ''tainted'' because former justice Stephen Thayer sat in on discussions of proposed changes even though a complaint was pending against him.

Many committee members also object to the new rules because, among other things, those rules give the court, not the committee itself, power to name a chairman and screen any public announcements.

By sealing the 19 records, the JCC is trying to maintain the status quo until after high court review, according to David S. Peck, executive secretary for the 11-member committee. ''If the new rules are void, then the old rules, including confidentiality, are in effect,'' he said. Once released to the public, a file cannot very well be resealed.

But the Supreme Court cannot act right away. All justices have stepped aside from this issue for possible conflicts of interest, and the Superior Court must name substitutes. A separate lawsuit, filed by The Union Leader of Manchester demanding release of the 19 grievance files, also may be heard by the special court.

All this adds to the image of disarray, and leads to increased demands for action. Nina C. Gardner, executive director of the Judicial Council, which monitors legislation, said she expects a number of bills will be introduced for action next year to make the JCC an independent agency.

Members of the court, and members of the Judicial Conduct Committee itself, favor independence, but all agree it would take time, cost money, and require the JCC to have its own office and staff. JCC members now are volunteers with only part-time help from Peck, who is one of the Supreme Court's two deputy clerks.

JCC members clearly are uncomfortable with the flood of recent criticism from folks emboldened by the judiciary's weakness in the face of repeated attacks, as well as the upcoming impeachment trial of Chief Justice David A. Brock. And there is a growing stack of paperwork.

Already the pace of formal complaints filed against various judges seems likely to surpass the old record of 80 in 1997. As of midweek, there were 68, compared with 68 for all of last year.

So, the JCC will have lunch with the Administrative Council. Justice John Broderick is chairman, and he may or may not be there - he, too, helped draft the new JCC rules.

Other members are acting chief of the Superior Courts, Walter Murphy, District Court Chief Ed Kelly, Probate Chief John Maher, and Donald Goodnow, director of the Administrative Office of the Courts.

This story ran on page 1 of the Boston Globe's New Hampshire Weekly on 8/13/2000.
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