The petitioner, W. Stephen Thayer, III, seeks a writ of prohibition that would bar the New Hampshire Supreme Court Committee on Judicial Conduct (JCC) from continuing to consider allegations of judicial misconduct said to have been committed by him during his tenure as an associate justice of the New Hampshire Supreme Court. We decline to issue the writ.
The JCC opened an investigation into Mr. Thayer’s conduct as a member of the supreme court in response to a June 1999 letter from Mr. Thayer. On March 31, 2000, while the JCC investigation was still underway, then Justice Thayer submitted his resignation. This petition followed.
The standards governing the issuance of a writ of prohibition are well established.
Prohibition is proper “to prevent a tribunal possessing judicial or quasi-judicial powers from exercising jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance.” 63C AM. JUR. 2D Prohibition § 1, at 6 (1997). “Prohibition is an extraordinary remedy which, although within the discretion of this court, is used with caution and forbearance and only when the right to relief is clear.” State v. Superior Ct.,116 N.H. 1 , 2,350 A.2d 626 , 627 (1976); see Manchester Education Ass’n v. Superior Court,109 N.H. 513 , 514,257 A.2d 23 , 24 (1969).
Petition of Mone,
Mr. Thayer argues that upon his resignation, the JCC lost its jurisdiction to investigate his conduct as a judge. He bases his argument, on Supreme Court Rules 39 and 40, case law from other jurisdictions, and the mootness doctrine.
The JCC objects, contending that Justice Thayer’s resignation did not divest the JCC of its jurisdiction to continue its investigation of conduct said to have occurred while the petitioner was still a member of the supreme court. The JCC bases its position on the purposes for which the rules of judicial conduct were created, a different reading of the supreme court rules, case law from other jurisdictions, and an assertion that its investigation is not moot. We agree with the JCC position!
In Opinion of the Justices (Judicial Salary Suspension),
The superintending control of the supreme court is comprehensive. State ex rel. Brown v. Knowlton,102 N.H. 221 , 223,152 A.2d 624 , 625 (1959). Accordingly, this court has the responsibility to protect and preserve the judicial system. We have the inherent authority to take whatever action is necessary to effectuate this responsibility.
See also SUP. CT. R. 38, Canon 1:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective without any limitation upon the supreme comí in the exercise of its powers of general superintendence, whether constitutional, statutory or inherent, in a,reas not delineated in the Code.
(Emphasis added). As the petitioner has acknowledged, even if we were to conclude that Supreme Court Rules 39 and 40 do not authorize the JCC to continue an investigation of a judge who has resigned, the supreme court would retain the constitutional, statutory, and inherent power to authorize such an investigation.
The New Hampshire Constitution “provides in emphatic terms that ‘[i]t is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit,’ and therefore judges ‘should hold their offices so long as they behave well.’” In re Mussman,
The supreme court has recently stated that “[t]he power to discipline judges is exercised for the protection of the public from further acts of misconduct and to protect the integrity of the judiciary.” Snow’s Case,
The integrity of the judicial system is fostered not just by the removal or suspension of a judge who has violated the Code of Judicial Conduct, but also by the investigative process of the JCC, the JCC’s ability “to hold a public hearing on a statement of formal charges,” Sup. Ct. R. 39(9)(g), and the availability of sanctions other than removal from office, such as public censure, see Snow’s Case,
The JCC’s power to investigate and hold hearings, and the supreme court’s power to censure, protect the public because
In short, we agree with the New York Court of Appeals that judicial “discipline is warranted to maintain the public’s confidence in the integrity of the judiciary as an institution,” Matter of Backal,
In light of our agreement with the principle that the discipline of judges, no less than the discipline of attorneys, is intended to be a way of “protecting] the public, maintaining] public confidence . . ., preserving] the integrity of the legal profession, and preventing] similar conduct in the future,” Morgan’s Case,
“The question of mootness is one of convenience and discretion and is not subject to hard-and-fast rules,” however. Appeal of Hinsdale Fed. of Teachers,133 N.H. 272 , 276,575 A.2d 1316 , 1318 (1990) (quotation omitted). We generally will refuse to review a question that “no longer presents a justiciable controversy because issues involved have become academic or dead,” id. at 276,575 A.2d at 1318-19 (quotation omitted), but may review a question that has become moot if it involves a significant constitutional question or an issue of significant public concern, Royer v. State Dep’t of Empl. Security,118 N.H. 673 , 675,394 A.2d 828 , 829 (1978).
Petition of Brooks,
The petitioner’s decision to resign his office terminated any potential impeachment inquiry against him. As a result, the investigation and possible public hearings authorized by Supreme Court Rules 39 and 40 take on greater importance in providing a public resolution of the allegations of misconduct by Mr. Thayer. Even if the JCC had no sanctions available and this matter were technically academic, there can be little doubt that the issues under investigation by the JCC qualify as “issue[s] of significant public concern,” Petition of Brooks,
Supreme Court Rule 37 provides that “[s]uspension or disbarment of an attorney shall not terminate jurisdiction of this court,” Sup. Ct. R. 37(1), and further provides that an attorney under disciplinary investigation may resign from the bar only if he or she admits to the facts upon which the complaint against him or her is based, concedes that he or she has no defense, and receives the permission of the supreme court, Sup. Ct. R. 37(9). The rules pertaining to judicial conduct contain no similar provision. In the petitioner’s view, the lack of parallel provisions in the rules pertaining to judicial conduct manifests the supreme court’s intent to terminate the jurisdiction of the JCC upon the resignation of a judge under investigation. He argues that we can rule that the JCC has continuing jurisdiction only by reading into Rules 39 and 40 a provision that the supreme court did not choose to include when those rules were originally drafted. We disagree.
The rules of judicial conduct and the rules of professional conduct are not in pari materia. The rules of judicial conduct pertain to judges and others who are officers of the State charged with the administration of an impartial system of justice. Judges are appointed by the governor, N.H. Const. pt. II, art. 46, to positions they may hold until their retirement, subject only to removal in extraordinary circumstances, N.H. Const. pt. II, arts. 38, 39, 73. A judge who is under investigation by the JCC and who wishes to resign his or her appointment does so by notifying the governor of his or her intention to resign. The rules of professional conduct pertain to attorneys who are licensed to practice by the supreme court under Supreme Court Rule 42, and whose licenses must be renewed annually. An attorney who is under investigation by the New Hampshire Supreme Court Committee on Professional Conduct (PCC) and who wishes to resign from the bar may do so only
The JCC was established under the supreme court’s comprehensive constitutional, statutory, and inherent authority to superintend the court system of this State. See Sup. Ct. R. 39(1). Given both the scope of the court’s authority and the purposes to be served by the system of judicial discipline administered by the JCC, it is not necessary for the rules to include a specific statement giving the JCC jurisdiction over judges who have resigned their appointments. See Sup. Ct. R. 38, Canon 1.
The rules pertaining to the professional conduct of attorneys stand on a somewhat different footing. The supreme court’s authority to discipline attorneys, as exercised by the PCC, is based upon the court’s authority over admission to and dismissal from the bar. Thus, Supreme Court Rule 37 contains the following statement of jurisdiction:
Any attorney admitted to practice law in this State or any attorney specially admitted to practice by a court of this State is subject to the disciplinary jurisdiction of this court and the committee on professional conduct as hereinafter defined. Nothing herein contained shall be construed to deny to any other court such powers as are necessary for that- court to maintain control over proceedings conducted before it, such as the power of contempt. Suspension or disbarment of an attorney shall not terminate jurisdiction of this court.
Sup. Ct. R. 37(1)(a). In light of the first sentence of this statement of jurisdiction, both the last sentence of Rule 37(1)(a) and Rule 37(9) are necessary in order to close a “loophole” that could otherwise allow attorneys who have been suspended or disbarred, or who have resigned from the bar, to escape the jurisdiction of the PCC. Because Rules 39 and 40 do not contain a jurisdictional statement such as the first sentence of Rule 37(1)(a), there is no “loophole” to close, and no need for any provisions parallel to the last sentence of Rule 37(1)(a) and Rule 37(9).
While phrased differently, the rules of the PCC and the JCC have a similar scope, and provide each of the supreme court’s disciplinary committees with jurisdiction over those who come before them until
Such a concern with final resolution has been recognized in a number of other states. See, e.g., Matter of Cox,
Our discussion of the distinction between the JCC and the PCC causes us to reject, as well, the petitioner’s contention that upon the resignation of a judge under investigation by the JCC, the JCC should “hand off” its investigation to the PCC. While all judges may now be attorneys, it does not necessarily follow that judicial conduct is a subset of professional conduct. Attorneys and judges
We conclude with a review of case law from other states. Both parties acknowledge a split of opinion among other jurisdictions on the question of whether the resignation of a judge terminates the jurisdiction of a body such as the JCC. While recognizing that each of the decisions discussed below may rest on a statutory and regulatory foundation that may be dissimilar in some ways to the legal basis for judicial discipline in New Hampshire, we nonetheless agree with the JCC that the weight of authority favors the continuation of its jurisdiction. See Matter of Johnstone, slip op. at 13 (“A majority of states agree with the ABA that a disciplinary body retains jurisdiction over a judge who has voluntarily retired after alleged acts of.misconduct.”) (citations omitted); see also ABA Model Rules for: judicial disciplinary Enforcement, Rule 2(b)(2) (1994).
The petitioner points to New Jersey, Vermont, and Illinois as states in which a judicial conduct committee loses its jurisdiction over a judge who resigns his or her judicial office. His reliance on case law from these states is misplaced.
In three cases, Matter of Sgro,
The defendant claimed that when her term of office terminated and she was not reelected, all jurisdiction over her with respect to judicial discipline terminated. It is the view of this Court that jurisdiction for purposes of judicial discipline attaches when a complaint is filed during judicial tenure relating to acts done as a judicial officer, and persists until ousted by some affirmative legal requirement. . . . Even though the circumstance that judicial office is no longer occupied may make certain dispositions inappropriate, this does not impair jurisdiction ....
In re Wheel,
A primary purpose of judicial discipline is to “preserve and enhance public confidence in the integrity and fairness of the justice system.” [In re] O’Dey, 159 Vt. [590,] 602, 622 A.2d [507,] 515 [(1993)]. These goals cannot be accomplished using either of the methods proposed by the dissent - disciplining ex-judges as attorneys through the Professional Conduct Board or disciplining ex-judges through the JCB only if they return to office. Applying this rule, any nonattorney judge can escape discipline for a code violation, no matter how serious, by resigning. Even after leaving office, an ex-judge retains the status of the judicial office on his resume. The public is entitled to know if the record is tarnished.
We agree with Justice Billings’ observation that the judicial conduct rules did not intend nonattorney judges to avoid discipline by resigning and “that to interpret the rules inaccordance with [that view] would emasculate them and thwart the Court’s duty to preserve and protect the integrity of the judiciary.” In re Fienberg, 139 Vt. 511 , 513,430 A.2d 1282 , 1283 (1981) (Billings, J., dissenting); see also West Virginia Judicial Hearing Board v. Romanello,175 W.Va. 577 ,336 S.E.2d 540 , 541 (1985) (court “would be ill-advised to establish a precedent that would allow a judge ... to escape punishment for [ethics violations] by resigning from office”); In re Sheppard,815 S.W.2d 917 , 920 (Tex.Spec.Ct.Rev. 1991), (judicial conduct board retains jurisdiction over retired or former judges who have not renounced their intent to serve on bench in future).
In re Steady,
The Illinois case cited by the petitioner, In re Dempsey, 2 Ill. Cts. Comm. 100 (1987), is distinguishable from this case due to a significant structural difference between the administration of judicial discipline in Illinois and New Hampshire. The New Hampshire JCC is a committee of the supreme court and is vested with some but not all of the comprehensive constitutional, statutory, and inherent authority of the court to superintend the judicial system of the State. By contrast, “the [Illinois] Courts Commission has exclusive authority to discipline judges pursuant to rules promulgated by the Illinois Supreme Court, rules which apply only to judges actually serving in a judicial capacity,” id. at 108. In Dempsey, the Courts Commission specifically decided that the fact of its exclusive authority to discipline judges — which gave the Commission a greater degree of independence from the Illinois Supreme Court than a mere court committee would have — rendered less apposite the case law from jurisdictions such as New Hampshire in which the body in charge of judicial conduct acts as a committee of a supreme court which holds the ultimate disciplinary authority. Accordingly, the Courts Commission’s decision in Dempsey has insufficient bearing on the case before us.
In New York, “Judiciary Law § 47 grants the Commission on Judicial Conduct and [the] Court [of Appeals of New York] jurisdiction to remove a resigned Judge for 120 days from the date of her resignation.” Matter of Backal,
The important part of Backal is not that the Commission on Judicial Conduct is empowered by statute to continue proceedings against a judge who has resigned; rather, it is that the Court of Appeals upheld Judiciary Law § 47 against a constitutional challenge. When it analyzed Judiciary Law § 47 in relation to a grant of constitutional authority similar to that contained in the New Hampshire Constitution, the Court of Appeals concluded that
this constitutional grant of authority to the Commission to discipline and remove “judges” necessarily and logically covers all acts of misconduct undertaken by a Judge while serving in office. The fact that a particular Judge may no longer hold that office at the time removal is sought or recommended by the Commission, due to the Judge’s postmisconduct resignation, does not preclude the Commission or this Court from exercising their respective disciplinary powers.
Matter of Backal,
Denied.