Chapter 334

2007 -- H 5524 SUBSTITUTE A

Enacted 07/06/07

 

A N  A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- COURTS

          

     Introduced By: Representatives Lally, Williamson, Jackson, O`Neill, and Petrarca

     Date Introduced: February 27, 2007

     

It is enacted by the General Assembly as follows:

 

     SECTION 1. Section 8-16-4 of the General Laws in Chapter 8-16 entitled "Commission

on Judicial Tenure and Discipline" is hereby amended to read as follows:

 

     8-16-4. Employment of personnel -- Investigation of unfitness. -- (a) The commission

is empowered hereby to engage the services of legal, secretarial, clerical, and investigative

employees and to make such other expenditures as are necessary for the effective performance of

its functions.

      (b) The commission, upon receiving from any person a verified statement, not

unfounded or frivolous, alleging facts indicating that a justice of the supreme court, the superior

court, the family court, the district court, the workers' compensation court, or the administrative

adjudication court traffic tribunal, or a probate judge in any city or town in the state is guilty of a

violation of the canons of judicial ethics, or of willful or persistent failure to perform his or her

duties, disabling addiction to alcoholic beverages, drugs, or narcotics, or conduct that brings the

judicial office into serious disrepute, or that such a judge has a physical or mental disability that

seriously interferes and will continue to interfere with the performance of his or her duties, shall

make a preliminary investigation to determine whether formal proceedings shall be instituted and

a hearing held. The commission may, on its initiative, make a preliminary investigation, without

receiving a verified statement, to determine whether formal proceedings shall be instituted and a

public hearing held.

      (c) If the preliminary investigation discloses that a charge of judicial unfitness of the

kind mentioned in this section is supported by substantial evidence, it shall direct that a public

hearing thereon be held, and the judge shall be notified of the investigation, the nature of the

charge, and the time and place set for a hearing thereon. The judge shall have the right to counsel

and to confront witnesses against him or her and shall be afforded a reasonable opportunity to

present such matters in defense as he or she may choose. The notice shall be given by prepaid

registered or certified mail addressed to the judge at his or her chambers or his or her last known

place of residence. The judge shall file a written answer to the charges within twenty (20) days

after the notice has been served upon him or her. Allegations contained in the notice that are not

denied in the answer shall be deemed admitted. The notice and the answer shall be public

documents. The judge shall attend the public hearing without the necessity of a subpoena being

served upon him or her; and, if he or she is called as a witness by the commission at the public

hearing, he or she shall take the witness stand and shall testify in the same manner as if under

subpoena.

      (d) If the preliminary investigation discloses that there exists a violation of the canons of

judicial ethics and that violation is not one of a serious nature, the commission may in its

discretion issue a private reprimand to the judge. The private reprimand shall caution the judge

that the conduct complained of, if continued, may be the cause for discipline. The private

reprimand shall include a statement of the facts found by the commission, as a result of the

preliminary investigation, and may issue confidential suggestions and recommendations with

respect to the judge. Any judge issued a private reprimand shall have the right to appeal the

private reprimand within ten (10) days and request a hearing before the commission with the

same rights accorded by this section; provided, however, that the hearing shall not be open to the

public, and all evidence and proceedings relating to the private reprimand shall be kept

confidential.

      (e) Upon completion of the hearings, the commission may dismiss the case on the

ground of insufficiency of proof or may recommend to the supreme court the censure, suspension,

immediate temporary suspension, reprimand, retirement, or removal from office of the judge

under investigation; provided, however, that the recommendation for the removal of a justice of

the supreme court shall be subject to the provisions of section 8-16-7(b). For the purposes of this

chapter, wherever the word "judge" appears, it shall be construed to include probate judges in the

cities and towns of this state.

      (f) The commission shall have the same authority to temporarily exclude all spectators

from the public hearing as is possessed by justices of the superior court in criminal cases.

 

     SECTION 2. Sections 8-16.1-6 and 8-16.1-7 of the General Laws in Chapter 8-16.1

entitled "Judicial Selection" are hereby amended to read as follows:

 

     8-16.1-6. Nomination and appointment of judges. -- (a) The governor shall

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

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

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

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

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

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

family court, district court, workers' compensation court, administrative adjudication court or any

other state court which the general assembly may from time to time establish, by nominating one

of the three (3) to five (5) highly qualified persons forwarded to him or her by the commission for

the court where the vacancy occurs.

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

submission by the commission.

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

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

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

nomination consider the nomination, but if the senate fails within sixty (60) days after the

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

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

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

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

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

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

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

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

consent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

according to law.

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

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

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

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

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

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

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

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

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

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

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

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

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

corporation;

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

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

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

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

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

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

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

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

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

returned to the chairperson of the judiciary committee and destroyed.

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

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

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

title 36.

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

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

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

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

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

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

an appointment as provided in this section.

 

     8-16.1-7. Tenure of justices. -- The justices of the supreme court, the superior court, the

family court, the district court, the workers' compensation court, and the administrative

adjudication court traffic tribunal shall hold office during good behavior.

 

     SECTION 3. Section 36-9-5 of the General Laws in Chapter 36-9 entitled "Retirement

System-Membership and Service Credits" is hereby amended to read as follows:

 

     36-9-5. Officers and employees exempt -- Former court judges and clerks. -- (a) The

members of the general assembly and the general officers of the state, except to the extent herein

provided, the judges of the supreme, superior, family, district courts, the administrative

adjudication court traffic tribunal, judges of the workers' compensation court except to the extent

herein provided, school teachers as defined by section 16-16-1 except to the extent provided by

chapter 17 of title 16, and members of the Rhode Island state police shall be exempt from the

provisions of chapters 8 -- 10 of this title; provided, however, that any justice or associate justice

or judge of the supreme court, superior court, family court, district court, or administrative

adjudication court traffic tribunal, chairperson of the workers' compensation court, or judge of the

workers' compensation court who was a member of the retirement system prior to becoming a

justice or associate justice or judge, shall, upon his or her filing with the retirement board a

written waiver of all benefits under the provisions of sections 8-3-7 -- 8-3-11 or 28-30-15 -- 28-

30-18 be permitted to elect to remain a member of the retirement system by paying into the

retirement system such sums as provided in section 36-10-1 computed on his or her salary as a

justice, associate justice, or judge and shall be eligible for all benefits under this title.

      (b) Any justice, associate justice, or judge who shall have retired in accordance with the

provisions of this section and who shall be recalled to service shall be recalled in accordance with

the provisions of section 8-3-7(b), section 28-30-15(b), or section 28-30-16, or section 28-30-

16.1.

 

     SECTION 4. This act shall take effect upon passage.

     

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LC01234/SUB A

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