Judicial Conduct Commision
Testimony of Eric Werme re.
Rules of Procedure
2002 April 19


I am a software engineer who became interested in direct involvement in governmental affairs first through the Libertarian Party and then through observation of NH's DCYF and other states' child protection service agencies. Some of the problems explored in our impeachment hearings related to secrecy. I had already understood some of the ramifications of secrecy in DCYF's domain, and so I became more interested in our judicial branch. The formation of this Judicial Conduct Commission and the continued problems within the Supreme Court convinced me to spend some time to observe and comment on current affairs. This public hearing is a good place to voice some of my concerns, and this document will a little beyond today's review for your Rules of Procedure.

Restoring confidence in the NH judicial system - not your job

There has been discussion at your organizational meetings that part of the JCC's role is to restore confidence in the judicial system. This is not your job. SB 197 states "the legislature finds it vital that the citizens of New Hampshire have an independent commission to able to adequately discipline the actions of judges who have breached the Code of Judicial Conduct." Reading between the lines, I think you can and should work at earning the trust of the citizens. Don't attempt to improve the public's perception of the courts, as any attempt to do that will merely serve to undermine support for the JCC and its actions. Consider the most recent Supreme Court investigation, that of Judges Broderick and Duggan. I find it incredible that they ever could have thought their "messenger boy" role would not raise concerns about the appearance of impropriety. I find it nearly equally as incredible that the JCC-I investigation "concluded that there is no probable cause to believe that there was a violation of the Code of Judicial Conduct." In my mind, and I suspect in other "reasonable minds," there was certainty that their actions appeared improper. Next time I'll be sure to let the JCC know.

As a side note, I have little trouble with the rest of the report and think an appropriate sanction would be nothing more than a "Car Talk dope slap." I do hope this JCC consider the citizens' viewpoint on issues involving the "appearance of impropriety," especially if you value our respect and support. As for improving citizens' respect and faith in the judiciary, leave that to the judges themselves. It appears that trying to do it for them will only embarrass you.

The JCC works for the citizens of NH and is responsible to them alone. In particular, you are not part of the judicial branch. Your job is to identify judges who have violated the public's trust and determine the appropriate sanctions. If you do that well, the JCC will earn the respect and trust of the citizens.

Secrecy and respect for the public

Secrecy is one of my hot buttons. I'm not alone - during the Supreme Court impeachment hearings Rep. Tony Soltani observed "Secrecy, to some of us, equals corruption." DCYF has long used it to stifle public review of their agency, a judge has used it against my wife because one of her clients went public with her difficulties with DCYF. The Professional Conduct Committee sought and received a "Special Matters Confidential" docket number from the Supreme Court for that case. It took my wife quite a while to learn what SMC was all about and to get it partially lifted. After the Brock trial, some in the legislature were astonished to hear about "Special Matters Confidential" after what they thought had been a complete review of Supreme Court procedures. This is one example of how the court's secrecy has earned it suspicion.

In general, secrecy is bad; openness is good. Our Constitution states "Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved." Still, there are times when I agree matters should be kept secret. I think the rule of thumb the JCC should use is to presume everything is open, then specify what should not be. For example, I don't have trouble with keeping a report secret until a judge has had time to prepare a response. Similarly, your deliberations can be secret, as long as the results are public. For the most part you seem to be doing the right thing, though I am concerned that some members first thought that unfounded reports would be kept secret. This is foolish - if someone is making many ridiculous complaints, make them public and let the reporter destroy his own credibility.

Similarly, concern was voiced at one of your organizational meetings about the public seeing that many complaints are being made and assuming that there is that much misconduct. This bothers me as it tries to both protect judges' stature (not your job) and advocates secrecy. Again, let the judges take care of themselves. The new Rules of Judicial Conduct states "A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." While that refers to a judge's actions, it's not a long leap to extend it to enduring unjust reports. DCYF has a policy that has them discarding unfounded reports of abuse and neglect after one year. That may work well for you.

Secrecy doesn't work. Thirty years of secrecy are coming back as an expensive lesson to the Catholic church. Bernard Cardinal Law recently wrote "Looking back, I see that we were too focused on the individual components of each case, when we should have been more focused on the protection of children. This would have changed our emphasis on secrecy as a part of legal settlements. While this focus was inspired by a desire to protect the privacy of the victim, to avoid scandal to the faithful and to preserve the reputation of the priest, we now realize both within the church and in society at large that secrecy often inhibits healing and places others at risk." At least the church thought it was protecting victims. The secrecy you have discussed was to protect judges. I don't recall discussion about protecting victims.

Just one JCC, please! [Not directly relevant to the Procedural Rules]

First, the Supreme Court created the Judicial Conduct Committee, which I call JCC-I, and all was good until we discovered it was not good. The court commissioned a task force to understand the problems and make recommendations. From their report arose S.B. 197 in 2001 to create the Judicial Conduct Commission, which I like to call JCC-II. Apparently the Supreme Court felt that S.B. 197 was inadequate, as their 2001 annual report states "... the court's decision to establish a new Judicial Conduct Commission' totally independent of the court system. The legislature however declined to provide funding." I call this the JCC-III. Apparently the lack of funding for the JCC-III has kept the Supreme Court from disbanding the JCC-I. Some day the Supreme Court may cease to surprise me. I don't expect it to be any time soon. If the court won't do it, the JCC-I should have the decency to disband itself.

When should reports be filed?

RSA169-C:29 says "... and any other person having reason to suspect that a child has been abused or neglected shall report the same." The result is that DCYF is forced to investigate many reports that have little or nothing to back them up. At best, this is a waste of time, at worst, valid reports have not been followed up in time. While I don't think you should block people from filing reports, I don't see any need to aggressively solicit reports. I think you will have enough to keep you busy anyway.


My major points are that your job is to:

WWW links for additional reading

The World Wide Web is a wonderful "democracy wall." I'm pleased that you have a presense there, and I invite you visit my corner. If this document isn't there yet, it will be soon. Here are a few links for the interested reader:

This looks at how DCYF uses and misuses secrecy in its affairs.

This will have several pages on the various JCCs and will soon hold this testimony.

This documents my wife's involvement with the Professional Conduct Committee. It is worth reading to understand the impact of slow processing and meritless complaints. It is also interesting to see what she has done to lift secrecy sought for by DCYF and the PCC.

Contact Ric Werme or return to his home page.

Written 2002 April 18, last updated 2004 June 14.