2013 -- S 0471 SUBSTITUTE A

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LC01767/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS - JUDICIAL SELECTION

     Introduced By: Senator Maryellen Goodwin

     Date Introduced: February 28, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 8-16.1-6 of the General Laws in Chapter 8-16.1 entitled "Judicial

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Selection" is hereby amended to read as follows:

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     8-16.1-6. Nomination and appointment of judges. [Repealed effective June 30, 2013.]

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Nomination and appointment of judges [Repealed effective June 30, 2014.] -- (a) (1) The

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governor shall immediately notify the commission of any vacancy or prospective vacancy of a

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judge of any state court other than the Rhode Island supreme court. The commission shall

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advertise for each vacancy and solicit prospective candidates and shall consider names submitted

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from any source. Within ninety (90) days of any vacancy the commission shall publicly submit

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the names of not less than three (3) and not more than five (5) highly qualified persons for each

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vacancy to the governor.

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      (2) Notwithstanding any other law to the contrary, any individual whose name was

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publicly submitted to the governor by the commission as described in subsection (1) above, shall

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also be eligible for subsequent nomination by the governor for any vacancy or prospective

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vacancy of a judge in the same court for which that particular individual had previously applied

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except for a vacancy in the position of presiding justice, chief justice, or chief judge.

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      (3) Such individuals shall remain eligible for nomination to fill any vacancy or

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prospective vacancy within the same court to which they previously applied for a period of five

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(5) years from the date their name or names were publicly submitted to the governor by the

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commission unless such individuals withdraw from future consideration in writing to the judicial

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nominating commission. However, such individuals must reapply for any subsequent vacancy or

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prospective vacancy in the same court for the position of presiding justice, chief justice, or chief

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judge.

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      (4) Subject to the eligibility requirements set forth above, the governor shall fill any

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vacancy of any judge of the Rhode Island superior court, family court, district court, workers'

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compensation court, or any other state court which the general assembly may from time to time

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establish, by nominating one of the three (3) to five (5) highly qualified persons forwarded to him

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or her by the commission for the court where the vacancy occurs, or by nominating another

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individual who has previously applied for a vacancy or prospective vacancy within the same court

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and whose name had been previously publicly submitted to the governor within the previous five

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(5) years.

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      (b) The governor shall fill any vacancy within twenty-one (21) days of the public

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submission by the commission.

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      (c) Each nomination shall be delivered forthwith to the secretary of the senate for

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presentation to the senate, and by and with the advice and consent of the senate, each nominee

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shall be appointed by the governor to serve subject to the general laws. The senate shall, after

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seven (7) calendar days of receipt of the nomination consider the nomination, but if the senate

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fails within ninety (90) days after the submission to confirm the nominee or if the senate does not

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by a majority vote of its members extend the deliberation an additional seven (7) calendar days,

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the governor shall appoint some other person to fill the vacancy and shall submit his or her

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appointment to the senate for confirmation in like manner until the senate shall confirm the

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nomination. If the nominee is rejected by the senate, the commission shall submit a new list of

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three (3) to five (5) candidates to the governor for the purpose of nomination in accordance with

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this chapter. Any new list may include but need not be limited to the names of any candidates

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who were previously submitted to the governor by the commission but who were not forwarded

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to the senate for its advice and consent.

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      (d) During the time for consideration of the nominees by the senate, the senate judiciary

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committee shall conduct an investigation and public hearing on the question of the qualifications

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of the nominee or nominees. At the public hearing, the testimony of every witness shall be taken

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under oath and stenographic records shall be taken and maintained. Further, the senate judiciary

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committee shall during the course of its investigation and hearing have the power upon majority

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vote of the committee members present to issue witness subpoenas, subpoenas duces tecum, and

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orders for the production of books, accounts, papers, records, and documents which shall be

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signed and issued by the chairperson of the committee, or the person serving in his or her

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capacity. All such subpoenas and orders shall be served as subpoenas in civil cases in the superior

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court are served, and witnesses so subpoenaed shall be entitled to the same fees for attendance

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and travel as provided for witnesses in civil cases in the superior court. If the person subpoenaed

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to attend before the committee fails to obey the command of the subpoena without reasonable

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cause, refuse to be sworn, or to be examined, or to answer a legal and pertinent question, or if any

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person shall refuse to produce books, accounts, papers, records, and documents material to the

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issue, set forth in an order duly served on him or her, the committee by majority vote of the

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committee members present may apply to any justice of the superior court, for any county, upon

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proof by affidavit of the fact, for a rule or order returnable in not less than two (2) nor more than

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five (5) days, directing the person to show cause before the justice who made the order or any

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other justice of the superior court, why he or she should not be adjudged in contempt. Upon the

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return of the order, the justice before whom the matter is brought on for hearing shall examine

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under oath the person, and the person shall be given an opportunity to be heard, and if the justice

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shall determine that the person has refused without reasonable cause or legal excuse to be

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examined or to answer a legal and pertinent question, or to produce books, accounts, papers,

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records, and documents material to the issue which he or she was ordered to bring or produce, he

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or she may forthwith commit the offender to the adult correctional institution, there to remain

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until the person submits to do the act which he or she was so required to do, or is discharged

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according to law.

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      (e) The committee shall, for the purpose of investigating the qualifications of the

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nominee or nominees, be furnished with a report compiled by the state police in conjunction with

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the attorney general's office indicating the determinations and findings of the state police and

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attorney general's office investigations concerning the background of the nominee or nominees,

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and the report shall include, but not be limited to, the following:

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      (1) Whether the nominee has ever been convicted of or pleaded guilty to a misdemeanor

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or felony in this or any other state or foreign country;

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      (2) Whether the nominee has ever filed a personal bankruptcy petition or an assignment

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for the benefit of creditors in this or any other state or foreign country; and whether the nominee

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has ever been a partner in, held ten percent (10%) or more of stock in, or held office in any sole

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proprietorship, partnership, or corporation that has been involved in bankruptcy or receivership

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actions as a debtor or because of insolvency at the time the nominee was a partner in, held ten

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percent (10%) or more stock in, or held office in any such sole proprietorship, partnership, or

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corporation;

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      (3) Whether the nominee has ever had a civil judgment rendered against him or her

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arising out of an allegation of fraud, misrepresentation, libel, slander, professional negligence, or

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any intentional tort in this state or any other state or foreign country;

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      (4) The state police in conjunction with the attorney general's department shall provide

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in their report the names and addresses of each and every source of their information.

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      (f) The reports set forth in this section shall be delivered to the chairperson and members

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of the senate judiciary committee in addition to the nominee or nominees only prior to the

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commencement of the public hearing. Provided, however, that if the nominee or nominees

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withdraw or decline the appointment prior to the public hearing then the report or reports shall be

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returned to the chairperson of the judiciary committee and destroyed.

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      (g) The committee shall also require a financial statement to be submitted by each

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nominee, prior to the public hearing, to the chairperson of the senate judiciary committee, to

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investigate each nominee to determine his or her compliance with the provisions of chapter 14 of

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title 36.

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      (h) Any associate justice of any state court who is appointed to serve as the chief or

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presiding justice of that court on an interim basis shall retain his or her status as an associate

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justice until the appointment to chief or presiding justice is made permanent.

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      (i) In case a vacancy shall occur when the senate is not in session, the governor shall

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appoint some person from a list of three (3) to five (5) persons submitted to the governor by the

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commission to fill the vacancy until the senate shall next convene, when the governor shall make

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an appointment as provided in this section.

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     8-16.1-6. Nomination and appointment of judges. [Effective June 30, 2012.] --

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Nomination and appointment of judges. [Effective June 30, 2014.] -- (a) The governor shall

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immediately notify the commission of any vacancy or prospective vacancy of a judge of any state

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court other than the Rhode Island supreme court. The commission shall advertise for each

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vacancy and solicit prospective candidates and shall consider names submitted from any source.

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Within ninety (90) days of any vacancy the commission shall publicly submit the names of not

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less than three (3) and not more than five (5) highly qualified persons for each vacancy to the

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governor. The governor shall fill any vacancy of any judge of the Rhode Island superior court,

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family court, district court, workers' compensation court, or any other state court which the

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general assembly may from time to time establish, by nominating one of the three (3) to five (5)

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highly qualified persons forwarded to him or her by the commission for the court where the

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vacancy occurs.

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      (b) The governor shall fill any vacancy within twenty-one (21) days of the public

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submission by the commission.

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      (c) Each nomination shall be forwarded forthwith to the senate, and by and with the

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advice and consent of the senate, each nominee shall be appointed by the governor to serve

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subject to the general laws. The senate shall, after seven (7) calendar days of receipt of the

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nomination consider the nomination, but if the senate fails within ninety (90) days after the

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submission to confirm the nominee or if the senate does not by a majority vote of its members

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extend the deliberation an additional seven (7) calendar days, the governor shall appoint some

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other person to fill the vacancy and shall submit his or her appointment to the senate for

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confirmation in like manner until the senate shall confirm the nomination. If the nominee is

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rejected by the senate, the commission shall submit a new list of three (3) to five (5) candidates to

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the governor for the purpose of nomination in accordance with this chapter. Any new list may

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include but need not be limited to the names of any candidates who were previously submitted to

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the governor by the commission but who were not forwarded to the senate for its advice and

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consent.

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      (d) During the time for consideration of the nominees by the senate, the senate judiciary

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committee shall conduct an investigation and public hearing on the question of the qualifications

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of the nominee or nominees. At the public hearing, the testimony of every witness shall be taken

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under oath and stenographic records shall be taken and maintained. Further, the senate judiciary

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committee shall during the course of its investigation and hearing have the power upon majority

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vote of the committee members present to issue witness subpoenas, subpoenas duces tecum, and

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orders for the production of books, accounts, papers, records, and documents which shall be

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signed and issued by the chairperson of the committee, or the person serving in his or her

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capacity. All such subpoenas and orders shall be served as subpoenas in civil cases in the superior

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court are served, and witnesses so subpoenaed shall be entitled to the same fees for attendance

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and travel as provided for witnesses in civil cases in the superior court. If the person subpoenaed

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to attend before the committee fails to obey the command of the subpoena without reasonable

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cause, refuse to be sworn, or to be examined, or to answer a legal and pertinent question, or if any

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person shall refuse to produce books, accounts, papers, records, and documents material to the

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issue, set forth in an order duly served on him or her, the committee by majority vote of the

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committee members present may apply to any justice of the superior court, for any county, upon

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proof by affidavit of the fact, for a rule or order returnable in not less than two (2) nor more than

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five (5) days, directing the person to show cause before the justice who made the order or any

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other justice of the superior court, why he or she should not be adjudged in contempt. Upon the

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return of the order, the justice before whom the matter is brought on for hearing shall examine

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under oath the person, and the person shall be given an opportunity to be heard, and if the justice

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shall determine that the person has refused without reasonable cause or legal excuse to be

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examined or to answer a legal and pertinent question, or to produce books, accounts, papers,

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records, and documents material to the issue which he or she was ordered to bring or produce, he

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or she may forthwith commit the offender to the adult correctional institution, there to remain

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until the person submits to do the act which he or she was so required to do, or is discharged

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according to law.

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      (e) The committee shall, for the purpose of investigating the qualifications of the

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nominee or nominees, be furnished with a report compiled by the state police in conjunction with

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the attorney general's office indicating the determinations and findings of the state police and

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attorney general's office investigations concerning the background of the nominee or nominees,

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and the report shall include, but not be limited to, the following:

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      (1) Whether the nominee has ever been convicted of or pleaded guilty to a misdemeanor

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or felony in this or any other state or foreign country;

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      (2) Whether the nominee has ever filed a personal bankruptcy petition or an assignment

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for the benefit of creditors in this or any other state or foreign country; and whether the nominee

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has ever been a partner in, held ten percent (10%) or more of stock in, or held office in any sole

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proprietorship, partnership, or corporation that has been involved in bankruptcy or receivership

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actions as a debtor or because of insolvency at the time the nominee was a partner in, held ten

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percent (10%) or more stock in, or held office in any such sole proprietorship, partnership, or

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corporation;

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      (3) Whether the nominee has ever had a civil judgment rendered against him or her

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arising out of an allegation of fraud, misrepresentation, libel, slander, professional negligence, or

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any intentional tort in this state or any other state or foreign country;

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      (4) The state police in conjunction with the attorney general's department shall provide

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in their report the names and addresses of each and every source of their information.

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      (f) The reports set forth in this section shall be delivered to the chairperson and members

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of the senate judiciary committee in addition to the nominee or nominees only prior to the

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commencement of the public hearing. Provided, however, that if the nominee or nominees

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withdraw or decline the appointment prior to the public hearing then the report or reports shall be

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returned to the chairperson of the judiciary committee and destroyed.

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      (g) The committee shall also require a financial statement to be submitted by each

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nominee, prior to the public hearing, to the chairperson of the senate judiciary committee, to

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investigate each nominee to determine his or her compliance with the provisions of chapter 14 of

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title 36.

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      (h) Any associate justice of any state court who is appointed to serve as the chief or

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presiding justice of that court on an interim basis shall retain his or her status as an associate

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justice until the appointment to chief or presiding justice is made permanent.

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      (i) In case a vacancy shall occur when the senate is not in session, the governor shall

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appoint some person from a list of three (3) to five (5) persons submitted to the governor by the

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commission to fill the vacancy until the senate shall next convene, when the governor shall make

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an appointment as provided in this section.

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     SECTION 2. This act shall take effect upon passage and shall be applied retroactively to

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June 30, 2013. For purposes of providing clarity, the expressed legislative intent of this act is that

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any individual on a list of judicial candidates as of June 30, 2013, shall remain on that list until

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June 30, 2014, unless that individual is actually confirmed as a judge prior to June 30, 2014.

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LC01767/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS - JUDICIAL SELECTION

***

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     This act would make any individual whose name was publicly submitted to the governor

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by the judicial nominating commission, eligible for subsequent nomination by the governor until

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June 30, 2014, for any vacancy or prospective vacancy of a judge in the same court for which that

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particular individual had previously applied except for a vacancy in the position of presiding

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justice, chief justice, or chief judge.

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     This act would take effect upon passage and would be applied retroactively to June 30,

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2013. For purposes of providing clarity, the expressed legislative intent of this act is that any

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individual on a list of judicial candidates as of June 30, 2013, would remain on that list until June

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30, 2014, unless that individual were actually confirmed as a judge prior to June 30, 2014.

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LC01767/SUB A

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