2012 -- S 2518

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LC00289

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- COURTS

     Introduced By: Senators Sheehan, Cote, E O`Neill, Lombardo, and Hodgson

     Date Introduced: February 16, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 8-2-11.1, 8-2-39, 8-2-39.1 and 8-2-39.2 of the General Laws in

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Chapter 8-2 entitled "Superior Court" are hereby amended to read as follows:

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     8-2-11.1. Administrator/magistrate. -- (a) Any person holding the position of

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administrative clerk in the superior court who is a member of the bar of Rhode Island may be

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appointed nominated administrator/magistrate for a term of ten (10) years and until a successor is

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appointed and qualified, by the presiding justice, by the governor, on the basis of merit, from a

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list submitted by the judicial nominating commission, with the advice and consent of the senate,

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in his or her capacity as administrative judge. Nothing herein shall be construed to prohibit the

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assignment of an administrator/magistrate to more than one such term, subject to the advice and

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consent of the senate. Any magistrate in service as of January 1, 2008 who serves at the pleasure

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of the presiding justice of the superior court may be appointed for a term of ten (10) years with

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the advice and consent of the senate and until a successor is appointed and qualified.

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      (b) (1) The administrator/magistrate shall have the power to hear and determine such

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matters as may be assigned to the administrator/magistrate by the presiding justice all to the same

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effect as if done by a justice of the superior court.

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      (2) Without limiting the generality of the foregoing powers and authority, the

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administrator/magistrate is authorized and empowered to hear and determine motions in civil and

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criminal proceedings, formal and special causes, to conduct arraignments, to grant or deny bail, to

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accept pleas of not guilty, guilty, or nolo contendere, and to impose sentence on a plea of guilty

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or nolo contendere, all to the same effect as if done by a justice of the superior court.

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      (c) The administrator/magistrate may be authorized:

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      (1) To regulate all proceedings before him or her;

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      (2) To do all acts and take all measures necessary or proper for the efficient performance

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of his or her duties;

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      (3) To require the production before him or her of books, papers, vouchers, documents,

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and writings;

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      (4) To rule upon the admissibility of evidence;

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      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

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examine them, and to call parties to the proceeding and examine them upon oath;

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      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

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than seventy-two (72) hours, pending review by a justice of the court, for failure to appear in

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response to a summons or for refusal to answer questions or produce evidence or for behavior

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disrupting a proceeding;

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      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

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than seventy-two (72) hours, pending review by a justice of the court, for failure to comply with a

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pending order to provide payment or to perform any other act; and

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      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

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appear after having been properly served and, should the court not be in session, the person

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apprehended may be detained at the adult correctional institution, if an adult, or at the Rhode

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Island training school for youth, if a child, until the next session of the court.

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      (d) A party aggrieved by an order entered by the administrator/magistrate shall be

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entitled to a review of the order by a justice of the superior court. Unless otherwise provided in

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the rules of procedure of the court, the review shall be on the record and appellate in nature. The

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court shall, by rules of procedure, establish procedures for review of orders entered by the

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administrator/magistrate, and for enforcement of contempt adjudications of the

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administrator/magistrate.

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      (e) Final orders of the superior court entered in a proceeding to review an order of the

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administrator/magistrate may be appealed to the supreme court.

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      (f) The administrator/magistrate shall be:

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      (1) Governed by the commission on judicial tenure and discipline, chapter 16, of this

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title, in the same manner as justices and judges;

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      (2) Subject to all provisions of the canons of judicial ethics;

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      (3) Subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

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     8-2-39. General magistrate -- Appointment, duties and powers. -- (a) There is hereby

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created within the superior court the position of general magistrate who shall be appointed

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nominated by the presiding justice of the superior court governor, on the basis of merit, from a

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list submitted by the judicial nominating commission, with the advice and consent of the senate,

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for a term of ten (10) years and until a successor is appointed and qualified. Nothing herein shall

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be construed to prohibit the assignment of the general magistrate to more than one such term,

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subject to the advice and consent of the senate. The person appointed to serve as general

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magistrate shall be a member of the bar of Rhode Island. The powers and duties of the general

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magistrate shall be prescribed in the order appointing him or her.

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      (b) (1) The general magistrate shall assist the court in:

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      (i) The determination of, monitoring, collection, and payment of restitution and court

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ordered fines, fees, and costs or the ordering of community service in lieu of or in addition to the

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payment of restitution, fines, fees, and costs, consistent with other provisions of the general laws;

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      (ii) The determination and payment of claims under the violent crimes indemnity fund

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for the Criminal Injuries Compensation Act of 1972, chapter 25 of title 12;

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      (iii) The determination and payment of claims from the Criminal Royalties Distribution

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Act of 1983, chapter 25.1 of title 12; and

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      (iv) Such other matters as the presiding justice of the superior court determines are

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necessary.

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      (2) The chief justice of the supreme court, with the consent of the presiding justice and,

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if applicable, the chief judge of a particular court, may assign the general magistrate to serve as a

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magistrate in any court of the unified system. When the general magistrate is so assigned he or

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she shall be vested, authorized, and empowered with all the powers belonging to the magistrate

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position to which he or she is specially assigned.

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      (c) The general magistrate will be empowered to hear all motions, pretrial conferences,

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arraignments, probable cause hearings, bail hearings, bail and probation revocation hearings, and

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to review all such matters including, but not limited to the above, and to modify the terms and

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conditions of probation and other court-ordered monetary payments including, but not limited to,

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the extension of time for probation and court-ordered monetary payments as provided by law.

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The general magistrate shall have the power to take testimony in connection with all matters set

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forth herein.

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      (d) The general magistrate may be authorized:

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      (1) To regulate all proceedings before him or her;

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      (2) To do all acts and take all measures necessary or proper for the efficient performance

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of his or her duties;

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      (3) To require the production before him or her of books, papers, vouchers, documents,

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and writings;

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      (4) To rule upon the admissibility of evidence;

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      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

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examine them, and to call parties to the proceeding and examine them upon oath;

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      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

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than seventy-two (72) hours, pending review by a justice of the relevant court, for failure to

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appear in response to a summons or for refusal to answer questions or produce evidence or for

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behavior disrupting a proceeding;

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      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

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than seventy-two (72) hours, pending review by a justice of the relevant court, for failure to

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comply with a pending order to provide payment or to perform any other act; and

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      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

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appear after having been properly served and, should the court not be in session, the person

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apprehended may be detained at the adult correctional institutions, if an adult, or at the Rhode

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Island training school for youth, if a child, until the next session of the court.

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      (e) A party aggrieved by an order entered by the general magistrate shall be entitled to a

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review of the order by a justice of the relevant court. Unless otherwise provided in the rules of

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procedure of the court, such review shall be on the record and appellate in nature. The court shall,

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by rules of procedure, establish procedures for review of orders entered by a general magistrate,

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and for enforcement of contempt adjudications of a general magistrate.

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      (f) Final orders of the superior or family court entered in a proceeding to review an order

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of a general magistrate may be appealed to the supreme court. Final orders of the district court

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entered in a proceeding to review an order of the general magistrate may be appealed to the

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superior court.

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      (g) The general magistrate shall:

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      (1) Receive all credits and retirement allowances as afforded justices under chapter 3 of

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this title and any other applicable law, including without limitation, section 8-3-16;

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      (2) Receive a salary equivalent to that of a district court judge;

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      (3) (Repealed);

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      (4) Be governed by the commission on judicial tenure and discipline, chapter 16, of this

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title, in the same manner as justices and judges;

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      (5) Be subject to all provisions of the canons of judicial ethics or code of judicial

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conduct;

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      (6) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

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      (h) The provisions of this section shall be afforded liberal construction.

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      (i) The presiding justice of the superior court shall initially appoint such support staff as

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may be necessary, relating to preparation, investigation, and implementation of the general

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magistrate's functions. Effective November 15, 1993, the support staff shall be placed under the

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supervision and management of the superior court, and new appointments or personnel changes in

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the support staff shall be subject to the directions and approval of the superior court, consistent

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with any applicable collective bargaining agreements. The general magistrate shall have the

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power and authority to issue subpoenas and to compel the attendance of witnesses at any place

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within the state, to administer oaths and to require testimony under oath. The general magistrate,

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or his or her designee, may serve his or her process or notices in a manner provided for the

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service of process and notice in civil or criminal actions in accordance with the rules of court.

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     8-2-39.1. Special magistrate. -- There is hereby created within the superior court the

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position of special magistrate, who shall be appointed nominated by the presiding justice of the

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superior court governor, on the basis of merit, from a list submitted by the judicial nominating

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commission, with the advice and consent of the senate, for a period of ten (10) years, and until a

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successor is appointed and qualified. Nothing contained herein shall be construed to prohibit the

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reappointment of a special magistrate for one or more additional ten (10) year terms, subject to

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the advice and consent of the senate. The person appointed to serve as special magistrate shall be

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a member of the bar of the state of Rhode Island. The special magistrate shall have the duties,

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responsibilities, powers and benefits as authorized in section8-2-39.

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     8-2-39.2. Drug court magistrate -- Appointment, duties and powers. -- (a) There is

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hereby created within the superior court the position of Drug Court Magistrate who shall be

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appointed nominated by the presiding justice of the superior court governor, on the basis of merit,

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from a list submitted by the judicial nominating commission, with the advice and consent of the

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senate. The persons appointed to serve as Drug Court Magistrates shall be members of the bar of

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Rhode Island. The powers and duties of the Drug Court Magistrate shall be prescribed in the

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order appointing him or her in addition to those described herein.

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      The Drug Court Magistrate's term shall be ten (10) years and until a successor is

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appointed nominated and qualified. Nothing in this article shall prohibit a Drug Court Magistrate

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from being reappointed renominated for additional ten (10) year terms by the presiding justice of

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the superior court governor, on the basis of merit, from a list submitted by the judicial nominating

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commission, with the advice and consent of the senate. He or she shall receive a salary equivalent

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to that received by the special magistrate assigned to the superior court.

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      (b) The Drug Court Magistrate shall be empowered to hear and decide as a superior court

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justice all matters relating to those adult offenders who come before the jurisdiction of the

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superior court on any offense relating to the offender's participation in the Adult Drug Court. In

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addition, the Drug Court Magistrate shall have the power to impose a period of incarceration

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upon a plea of guilty or nolo contendere, and also have the power to confine any person who has

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been found to be in violation of any conditions previously imposed by the superior court.

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      (c) The Drug Court Magistrate shall be empowered to hear and decide as a superior court

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justice all matters that may come before the superior court pursuant to chapter 37.1 of title 11

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"Sexual Offender Registration and Community Notification."

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      (d) The Drug Court Magistrate and/or the presiding justice of the superior court may fix

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the venue of any person who is before the superior court as a participant in the Adult Drug Court

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or who is alleged to be a sexual predator, and who has filed an objection to community

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notification.

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      (e) The Drug Court Magistrate shall be governed by the commission on judicial tenure

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and discipline, chapter 16 of title 8 in the same manner as justices and judges; shall be subject to

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all provisions of the canons of judicial ethics or code of judicial conduct; and shall be subject to

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all criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

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      (f) A party aggrieved by an order entered by the Drug Court Magistrate shall be entitled

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to a review of the order by a justice of the Superior Court. Unless otherwise provided in the rules

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of procedure of the court, such review shall be on the record and appellate in nature. The Superior

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Court shall, by rules of procedure, establish procedures for reviews of orders entered by a Drug

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Court Magistrate, and for enforcement of contempt adjudications of a Drug Court Magistrate.

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     SECTION 2. Sections 8-8-8.1 and 8-8-16.2 of the General Laws in Chapter 8-8 entitled

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"District Court" are hereby amended to read as follows:

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     8-8-8.1. Administrator/clerk -- Magistrate. -- (a) Administrator/clerk. - There shall be a

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district court administrator/clerk who shall be appointed by the chief judge in his or her capacity

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as administrative head of the court, and who shall hold office at the pleasure of the administrative

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judge. The administrator/clerk shall perform such duties and attend to such matters as may be

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assigned to the administrator/clerk by the administrative judge, other than those duties assigned to

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the chief clerk in section8-8-19. Said duties may be assigned by the chief judge.

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      (b) Magistrate. - Any person holding the position of district court administrator/clerk

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who is a member of the bar of Rhode Island may be appointed nominated district court magistrate

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by the chief judge in his or her capacity as administrative head of the court, governor, on the basis

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of merit, from a list submitted by the judicial nominating commission, subject to the advice and

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consent of the senate. The district court magistrate shall hold said office for a term of ten (10)

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years and until a successor is appointed and qualified; and the magistrate shall retain whatever

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right he or she may have to the position of district court administrator/clerk pursuant to this

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section. Nothing herein shall be construed to prohibit the appointment nomination of the

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magistrate for more than one term, subject to the advice and consent of the senate. Any person

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holding office of district court magistrate on July 1, 1999 may continue in full authority in said

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position until such time as an appointment a nomination is made and the nominee qualified

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pursuant to this subsection.

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      (c) The district court magistrate shall have the power to hear and determine such matters

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as may be assigned to the district court magistrate by the chief judge all to the same effect as if

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done by a judge of the district court, including, but not limited to:

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      (1) Matters relating to the determination of, monitoring, collection, and payment of

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restitution and court ordered fines, fees, and costs or the ordering of community service in lieu of

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or in addition to the payment of restitution, fines, fees, and costs, consistent with other provisions

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of the general laws;

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      (2) Arraignments and pretrial motions in misdemeanor, petty misdemeanor, violation,

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and ordinance cases and initial appearances and probable cause hearings in felony cases;

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      (3) Bail hearings pursuant to R.I. Const., Art. I, Sec. IX and all other bail matters

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pursuant to chapter 13 of title 12 and the rules of criminal procedure, including but not limited to

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motions to modify bail, bail revocation hearings, bail forfeiture hearings, and bail source

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hearings;

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      (4) All matters relating to fugitives from justice pursuant to chapter 9 of title 12;

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      (5) Probation revocation hearings;

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      (6) All matters relating to small claims and consumer claims pursuant to chapter 16 of

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title 10, including any pretrial motions including motions relating to the special service of

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process, the entry of defaults and default judgments, the trial of such cases and the entry of

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judgment after such trials, and all matters relating to the enforcement of such judgments,

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including but not limited to the ordering of installment payments and trustee process; and

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      (7) Complaints for judicial review of the decision of an administrative agency pursuant

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to chapter 35 of title 42 by making proposed findings of fact and recommendations for the

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disposition of the complaints to a judge of the court. Any party may object to any portion of the

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magistrate's proposed findings and recommendations within ten (10) days after receipt of a copy

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thereof. That party shall file with the clerk of the sixth division of the district court and serve on

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all parties written objections which shall specifically identify the portions of the proposed

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findings and recommendations to which objection is made and the basis for the objection. A

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judge shall make a de novo determination of those portions to which objection is made and may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate. Absent a timely objection filed in accordance with this subdivision, the proposed

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prevailing party shall, upon expiration of the ten (10) days following the service of the

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magistrate's proposed findings and recommendations, submit a proposed order for signature of

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the judge to whom the case has been assigned.

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      (8) [Deleted by P.L. 2008, ch. 1, section 3].

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      (d) The magistrate may be authorized:

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      (1) To regulate all proceedings before him or her;

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      (2) To do all acts necessary or proper for the efficient performance of his or her duties;

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      (3) To require the production before him or her of books, papers, vouchers, documents,

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and writings;

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      (4) To rule upon the admissibility of evidence;

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      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

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examine them, and to call parties to the proceeding and examine them upon oath;

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      (6) To adjudicate a person in contempt and to order him or her fined or to order him or

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her imprisoned for not more than seventy-two (72) hours, pending review by a judge of the court,

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for failure to appear in response to a summons or for refusal to answer questions or produce

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evidence or for behavior disrupting a proceeding or other contempt of his or her authority;

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      (7) To adjudicate a person in contempt and to order him or her fined or to order him or

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her imprisoned for not more than seventy-two (72) hours, pending review by a judge of the court,

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for failure to comply with a pending order to provide payment or to perform any other act;

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      (8) To issue a capias and/or body attachment for the failure of a party or witness to

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appear after having been properly served or given notice by the court and, should the court not be

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in session, the person apprehended may be detained at the adult correctional institution, if an

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adult, or at the Rhode Island training school for youth, if a child, until the next session of the

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court;

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      (9) To issue writs of habeas corpus to bring before him or her or a judge of the court any

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person in jail or in prison to be examined as a witness in a suit or proceeding, civil or criminal,

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pending before the court, or whose presence is necessary as a party or otherwise necessary so that

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the ends of justice may be attained, and for no other purpose; and

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      (10) To issue warrants of arrest and search warrants to the same extent as an associate

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judge of the court.

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      (e) Except as otherwise indicated, a party aggrieved by an order entered by the district

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court magistrate shall be entitled to a review of the order, whether by appeal or otherwise, by a

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judge of the court. The court shall, by rules of procedure, establish procedures for review of

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contempt and adjudications of the magistrate.

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      (f) The magistrate shall be:

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      (1) Governed by the commission on judicial tenure and discipline, chapter 16 of this

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title, in the same manner as justices and judges;

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      (2) Subject to all provisions of the canons of judicial ethics;

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      (3) Subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

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      (g) The provisions of this section shall be afforded liberal construction.

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     8-8-16.2. District court clerk/magistrate. -- (a) Any person who is a member of the bar

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of Rhode Island may be appointed nominated district court clerk/magistrate by the chief judge in

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his or her capacity as administrative head of the court governor, on the basis of merit, from a list

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submitted by the judicial nominating commission, subject to the advice and consent of the senate.

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The district court clerk/magistrate shall hold that office for a term of ten (10) years and until a

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successor is appointed nominated and qualified. Nothing herein shall be construed to prohibit the

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assignment nomination of the district court clerk/magistrate to more than one such term, subject

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to the advice and consent of the senate. The district court clerk/magistrate shall have the power to

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hear and determine any matters that may be assigned to the district court clerk/magistrate by the

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chief judge all to the same effect as if done by a judge of the district court, including, but not

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limited to, matters relating to the determination of, monitoring, collection and payment of

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restitution and court ordered fines, fees and costs or the ordering of community service in lieu of

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or in addition to the payment of restitution, fines, fees and costs, consistent with other provisions

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of the general laws.

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      (b) The clerk/magistrate may be authorized:

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      (1) To regulate all proceedings before him or her;

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      (2) To do all acts necessary or proper for the efficient performance of his or her duties;

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      (3) To require the production before him or her of books, papers, vouchers, documents

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and writings;

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      (4) To rule upon the admissibility of evidence;

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      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

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examine them and to call parties to the proceeding and examine them upon oath;

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      (6) To adjudicate a person in contempt and to order him or her fined or to order him or

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her imprisoned for not more than seventy-two (72) hours, for failure to appear in response to a

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summons or for refusal to answer questions or produce evidence or for behavior disrupting a

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proceeding or other contempt of his or her authority; provided; however, that no such

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imprisonment shall occur prior to review by a judge of the court.

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      (7) To adjudicate a person in contempt and to order him or her fined or to order him or

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her imprisoned for not more than seventy-two (72) hours, for failure to comply with a pending

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order to provide payment or to perform any other act; provided, however, that no such

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imprisonment shall occur prior to review by a judge of the court.

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      (8) To issue a capias and/or body attachment for the failure of a party or witness to

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appear after having been properly served or given notice by the court and, should the court not be

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in session, the person apprehended may be detained at the adult correctional institutions, if an

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adult, or at the Rhode Island training school for youth, if a child, until the next session of the

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court;

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      (9) To issue writs of habeas corpus to bring before him or her or a judge of the court any

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person in jail or in prison to be examined as a witness in a suit or proceeding, civil or criminal,

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pending before the court, or whose presence is necessary as a party or otherwise necessary so that

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the ends of justice may be attained, and for no other purpose; and

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      (10) To issue warrants of arrest and search warrants to the same extent as an associate

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judge of the court.

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      (c) Except as otherwise indicated, a party aggrieved by an order entered by the district

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court clerk/magistrate shall be entitled to a review of the order, whether by appeal or otherwise,

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by a judge of the court. The court shall, by rules of procedure, establish procedures for review of

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contempt and adjudications of the clerk/magistrate.

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      (d) The district court clerk/magistrate shall:

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      (1) Be governed by the commission on judicial tenure and discipline, pursuant to chapter

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16 of this title, in the same manner as justices and judges;

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      (2) Be subject to all provisions of the canons of judicial ethics;

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      (3) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

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7-2.

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      (4) Receive any salary that may be established by the state court administrator pursuant

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to section 8-15-4. The provisions of this section shall be afforded liberal construction.

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     SECTION 3. Section 8-8.2-1 of the General Laws in Chapter 8-8.2 entitled "Traffic

10-101

Tribunal" is hereby amended to read as follows:

11-102

     8-8.2-1. Establishment -- Rule-making authority -- Adjudication of violations. -- (a)

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There is hereby established a traffic tribunal which shall be charged with the administration and

11-104

adjudication of traffic violations within its jurisdiction. The traffic tribunal shall be under the

11-105

supervision of the chief magistrate of the traffic tribunal, who shall be the administrative head of

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the traffic tribunal and shall have the power to make rules for regulating practice, procedure and

11-107

business within the traffic tribunal. Pursuant to section 8-6-2, said rules shall be subject to the

11-108

approval of the supreme court. Such rules, when effective, shall supersede any statutory

11-109

regulation in conflict therewith. Any person who has been a member of the bar of Rhode Island

11-110

may be appointed chief magistrate of the traffic tribunal. The chief magistrate of the traffic

11-111

tribunal shall be appointed nominated by the chief justice of the supreme court, governor, on the

11-112

basis of merit, from a list submitted by the judicial nominating commission, with the advice and

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consent of the senate, for a period of ten (10) years and until a successor is appointed nominated

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and qualified. Nothing contained herein shall be construed to prohibit the reappointment

11-115

renomination of the chief magistrate for one or more ten (10) year terms subject to the advice and

11-116

consent of the senate. Compensation for the chief magistrate shall be equal to that of an associate

11-117

judge of the district court.

11-118

      (b) The judges and magistrates of the traffic tribunal shall hear and determine cases as

11-119

provided by law. No district court judge appointed pursuant to chapter 8 of this title shall be

11-120

assigned to perform duties of a judge or magistrate of the traffic tribunal under this chapter. The

11-121

chief magistrate of the traffic tribunal may assign a judge or magistrate who is authorized to hear

11-122

and decide cases in the traffic tribunal to serve as administrative judge or magistrate of the traffic

11-123

tribunal and the administrative judge or magistrate shall perform such administrative duties as

11-124

may be delegated to him or her by the chief magistrate. Once assigned to the position, the

11-125

administrative judge or magistrate shall hold said administrative position for the remainder of his

11-126

or her respective term as a judge or magistrate of the traffic tribunal.

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      (c) (i) Those judges of the administrative adjudication court in active service on July 1,

11-128

1999 shall serve within the traffic tribunal. Whenever the total number of judges and magistrates

11-129

in the traffic tribunal exclusive of the chief magistrate shall be less than seven (7), the chief

11-130

justice of the supreme court, with the advice and consent of the senate, may, as needed, assign a

11-131

duly qualified member of the bar of this state to act as a magistrate to fill such vacancy and shall

11-132

submit his or her name to the senate for confirmation. In the event of a vacancy in the position of

11-133

chief magistrate, the chief justice of the supreme court shall appoint a successor in accordance

11-134

with subsection 8-8.2-1(a). Any magistrate assigned under this section shall serve a term of ten

11-135

(10) years and until a successor is appointed and qualified, and shall be in the unclassified service

11-136

of the state. Nothing herein shall be construed to prohibit the assignment of a magistrate to more

12-1

than one such term, subject to the advice and consent of the senate. Compensation for any such

12-2

magistrate shall be determined by the chief magistrate of the traffic tribunal subject to

12-3

appropriation by the general assembly but in no event shall the compensation be equal to or more

12-4

than that of an associate judge of the district court. Magistrates of the traffic tribunal shall

12-5

participate in the state retirement system in the same manner as all members of the unclassified

12-6

service.

12-7

      (ii) If any judge of the traffic tribunal shall retire, or a vacancy becomes available

12-8

through death, disability or any other reason, the position shall be filled by a magistrate consistent

12-9

with the provisions of this section.

12-10

      (d) Each judge and magistrate of the traffic tribunal shall devote full time to his or her

12-11

judicial duties, except as may be otherwise provided by law. He or she shall not practice law

12-12

while holding office, nor shall he or she be a partner or associate of any person in the practice of

12-13

law.

12-14

      (e) Judges and magistrates of the traffic tribunal shall be subject to the provisions of R.I.

12-15

Const. Art. XI; to the code of judicial conduct or successor code promulgated by the supreme

12-16

court of this state, to the jurisdiction of the Commission on Judicial Tenure and Discipline in

12-17

accordance with chapter 16 of this title; and to the administrative authority and control of the

12-18

chief justice of the supreme court in accordance with chapter 15 of this title, except that sections

12-19

8-15-3 and 8-15-3.1 shall not apply to judges and/or magistrates of the traffic tribunal.

12-20

      (f) The traffic tribunal shall be a tribunal of record and shall have a seal with such words

12-21

and devices as it shall adopt.

12-22

      (g) Judges and magistrates of the traffic tribunal shall have the power to administer oaths

12-23

and affirmations.

12-24

      (h) Administrative/supervisory officials. - (1) There shall be an assistant to the

12-25

administrative magistrate of the traffic tribunal who shall be appointed by and serve at the

12-26

pleasure of the chief magistrate and who shall perform such clerical and administrative duties as

12-27

may be assigned to him or her by the chief magistrate of the traffic tribunal and the administrative

12-28

judge or magistrate of the traffic tribunal. The assistant to the administrative judge or magistrate

12-29

shall have the power to administer oaths and affirmations within the state.

12-30

      (2) There shall be a clerk of the traffic tribunal who shall be appointed by and serve at

12-31

the pleasure of the chief magistrate of the traffic tribunal; provided, however, that, effective July

12-32

1, 1999, the first clerk of the traffic tribunal shall be that person holding the position of

12-33

administrator/clerk of the administrative adjudication court as of May 1, 1998, and that person

12-34

shall hold office for the balance of a term of twelve (12) years which began on September 1,

13-1

1992, without the necessity of appointment by the governor or advice and consent of the senate.

13-2

The clerk of the traffic tribunal shall exercise his or her functions under the direction and control

13-3

of the chief magistrate of the traffic tribunal and the administrative judge or magistrate of the

13-4

traffic tribunal. The clerk of the traffic tribunal shall have the power to administer oaths and

13-5

affirmations within the state.

13-6

      (i) Clerical Personnel/Court Recorders. - (1) The chief magistrate of the traffic tribunal

13-7

shall appoint deputy clerks and assistance clerks for the traffic tribunal to serve at his or her

13-8

pleasure. All such clerks may administer oaths and affirmations within the state.

13-9

      (2) The chief magistrate of the traffic tribunal shall appoint sufficient court recorders to

13-10

enable all proceedings to be recorded by electronic means and who shall assist in such other

13-11

clerical duties as may be prescribed from time to time by the chief magistrate of the traffic

13-12

tribunal.

13-13

      (3) The chief magistrate of the traffic tribunal shall employ such clerical assistants in

13-14

addition to deputy clerks as may be required in the traffic tribunal to perform clerical duties.

13-15

     SECTION 4. Sections 8-10-3.1 and 8-10-3.2 of the General Laws in Chapter 8-10

13-16

entitled "Family Court" are hereby amended to read as follows:

13-17

     8-10-3.1. Magistrates -- Appointment, duties, and powers. -- (a) The chief judge of the

13-18

family court governor may appoint nominate magistrates, with the advice and consent of the

13-19

senate, to assist the court in the conduct of its business. A person appointed nominated to serve as

13-20

a magistrate shall be a member of the bar of Rhode Island and shall be chosen on the basis of

13-21

merit, from a list submitted by the judicial nominating commission. The powers and duties of

13-22

magistrates shall be prescribed in the order appointing them.

13-23

      (b) In addition, magistrates may assist the court in:

13-24

      (1) the enforcement and implementation of chapter 23.1 of title 15,

13-25

      (2) the determination of matters that come before the court pursuant to section8-10-4,

13-26

chapter 1 of title 14, chapters 5, 7, 8, 9, 10 and 16 of title 15, chapter 19 of title 16, chapter 11 of

13-27

title 40, and chapter 5 of title 40.1.

13-28

      Magistrates shall be empowered to hear and determine all motions, pretrial conferences,

13-29

arraignments of juvenile offenders, probable cause hearings, and review of all such matters,

13-30

including but not limited to, the temporary placement, custody, disposition and adoption of

13-31

children, orders of support, final divorce decrees, and the taking of testimony in conducting all

13-32

hearings relative thereto subject to the review provided for in subsection (d).

13-33

      (c) The magistrates shall serve a term of ten (10) years and until a successor is appointed

13-34

nominated and qualified and his or her powers and duties shall be prescribed in the order

14-1

appointing him or her or in the rules of procedure of the family court. Any magistrate in service

14-2

as of January 1, 2008 who serves at the pleasure of the chief judge of the family court may be

14-3

appointed nominated by the governor for a term of ten (10) years with the advice and consent of

14-4

the senate and until a successor is appointed nominated and qualified. Nothing herein shall be

14-5

construed to prohibit the assignment nomination of a magistrate to more than one such term,

14-6

subject to the advice and consent of the senate. The magistrates may be authorized:

14-7

      (1) To regulate all proceedings before him or her;

14-8

      (2) To do all acts and take all measures necessary or proper for the efficient performance

14-9

of his or her duties;

14-10

      (3) To require the production before him or her of books, papers, vouchers, documents,

14-11

and writings;

14-12

      (4) To rule upon the admissibility of evidence;

14-13

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

14-14

examine them, and to call parties to the proceeding and examine them upon oath;

14-15

      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

14-16

than seventy-two (72) hours, pending review by a justice of the court, for failure to appear in

14-17

response to a summons or for refusal to answer questions or produce evidence or for behavior

14-18

disrupting a proceeding;

14-19

      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

14-20

than seventy-two (72) hours, pending review by a justice of the court, for failure to comply with a

14-21

pending order to provide support or to perform any other act; and

14-22

      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

14-23

appear after having been properly served and, should the family court not be in session, the

14-24

person apprehended may be detained at the adult correctional institution, if an adult, or at the

14-25

Rhode Island training school for youth, if a child, until the next session of the family court.

14-26

      (d) A party aggrieved by an order entered by a magistrate shall be entitled to a review of

14-27

the order by a justice of the family court. Unless otherwise provided in the rules of procedure of

14-28

the family court, such review shall be on the record and appellate in nature. The family court shall

14-29

by rules of procedure establish procedures for review of orders entered by a magistrate, and for

14-30

enforcement of contempt adjudications of a magistrate.

14-31

      (e) Final orders of the family court entered in a proceeding to review an order of a

14-32

magistrate may be appealed to the supreme court.

14-33

      (f) The magistrates shall be empowered to hear de novo all applications for income

14-34

withholding pursuant to chapter 16 of title 15 and appeals of administrative agency orders of the

15-1

department of human services to withhold income under chapter 16 of title 15.

15-2

      (g) The magistrates shall be empowered to hear all matters relating to the revocation or

15-3

nonrenewal of a license of an obligor due to non-compliance with a court order of support, in

15-4

accordance with chapter 11.1 of title 15.

15-5

      (h) The magistrates may be authorized by the chief judge to hear those matters on the

15-6

domestic abuse prevention calendar and the nominal calendar.

15-7

      [See section 12-1-15 of the General Laws.]

15-8

     8-10-3.2. General magistrate of the family court. -- (a) There is hereby created within

15-9

the family court the position of general magistrate of the family court who shall be appointed

15-10

nominated by the chief judge of the family court governor, on the basis of merit, from a list

15-11

submitted by the judicial nominating commission with the advice and consent of the senate for a

15-12

term of ten (10) years and until a successor is appointed nominated and qualified. Nothing herein

15-13

shall be construed to prohibit the assignment nomination of the general magistrate to more than

15-14

one such term, subject to the advice and consent of the senate.

15-15

      (b) The general magistrate shall be an attorney at law and a member in good standing of

15-16

the Rhode Island bar.

15-17

      (c) The primary function of the general magistrate shall be the enforcement of child

15-18

support decrees, orders, and law relative to child support. The general magistrate shall have all

15-19

the authority and powers vested in magistrates by virtue of sections 8-10-3, 8-10-3.1, 9-15-19, 9-

15-20

15-21, 9-14-26, 9-18-8, 9-18-9, and 36-2-3, and any other authority conferred upon magistrates

15-21

by any general or public law or by any rule of procedure or practice of any court within the state.

15-22

      (d) The chief justice of the supreme court with the agreement of the chief judge of the

15-23

family court may specially assign the general magistrate to any court of the unified judicial

15-24

system; provided, however, that the general magistrate may be assigned to the superior court

15-25

subject to the prior approval of the presiding justice of the superior court. When the general

15-26

magistrate is so assigned he or she shall be vested, authorized, and empowered with all the

15-27

powers belonging to the magistrates of the court to which he or she is specially assigned.

15-28

      (e) The general magistrate shall:

15-29

      (1) Receive all credits and retirement allowances as afforded justices under chapter 3 of

15-30

this title and any other applicable law;

15-31

      (2) Be governed by the commission on judicial tenure and discipline, chapter 16 of this

15-32

title, in the same manner as justices and workers' compensation judges;

15-33

      (3) Be entitled to a special license plate under section 31-3-47;

16-34

      (4) Receive a salary equivalent to that of a district court judge;

16-35

      (5) Be subject to all the provisions of the canons of judicial ethics; and

16-36

      (6) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

16-37

7-2.

16-38

      (f) The provisions of this section shall be afforded liberal construction.

16-39

     SECTION 5. Section 8-16.1-6 of the General Laws in Chapter 8-16.1 entitled "Judicial

16-40

Selection" is hereby amended to read as follows:

16-41

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

16-42

-- (a) (1) The governor shall immediately notify the commission of any vacancy or prospective

16-43

vacancy of a judge or magistrate of any state court other than the Rhode Island supreme court.

16-44

The commission shall advertise for each vacancy and solicit prospective candidates and shall

16-45

consider names submitted from any source. Within ninety (90) days of any vacancy the

16-46

commission shall publicly submit the names of not less than three (3) and not more than five (5)

16-47

highly qualified persons for each vacancy to the governor.

16-48

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

16-49

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

16-50

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

16-51

vacancy of a judge or magistrate in the same court for which that particular individual had

16-52

previously applied except for a vacancy in the position of presiding justice, chief justice, or chief

16-53

judge.

16-54

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

16-55

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

16-56

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

16-57

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

16-58

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

16-59

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

16-60

judge.

16-61

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

16-62

vacancy of any judge or magistrate of the Rhode Island superior court, family court, district court,

16-63

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

16-64

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

16-65

forwarded to him or her by the commission for the court where the vacancy occurs, or by

16-66

nominating another individual who has previously applied for a vacancy or prospective vacancy

16-67

within the same court and whose name had been previously publicly submitted to the governor

16-68

within the previous five (5) years.

17-1

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

17-2

submission by the commission.

17-3

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

17-4

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

17-5

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

17-6

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

17-7

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

17-8

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

17-9

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

17-10

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

17-11

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

17-12

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

17-13

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

17-14

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

17-15

to the senate for its advice and consent.

17-16

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

17-17

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

17-18

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

17-19

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

17-20

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

17-21

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

17-22

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

17-23

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

17-24

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

17-25

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

17-26

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

17-27

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

17-28

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

17-29

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

17-30

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

17-31

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

17-32

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

17-33

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

17-34

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

18-1

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

18-2

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

18-3

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

18-4

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

18-5

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

18-6

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

18-7

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

18-8

according to law.

18-9

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

18-10

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

18-11

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

18-12

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

18-13

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

18-14

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

18-15

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

18-16

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

18-17

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

18-18

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

18-19

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

18-20

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

18-21

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

18-22

corporation;

18-23

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

18-24

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

18-25

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

18-26

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

18-27

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

18-28

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

18-29

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

18-30

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

18-31

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

18-32

returned to the chairperson of the judiciary committee and destroyed.

18-33

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

18-34

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

19-1

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

19-2

title 36.

19-3

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

19-4

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

19-5

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

19-6

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

19-7

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

19-8

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

19-9

an appointment as provided in this section.

19-10

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

19-11

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

19-12

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

19-13

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

19-14

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

19-15

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

19-16

each vacancy to the governor. The governor shall fill any vacancy of any judge of the Rhode

19-17

Island superior court, family court, district court, workers' compensation court, or any other state

19-18

court which the general assembly may from time to time establish, by nominating one of the three

19-19

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

19-20

where the vacancy occurs.

19-21

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

19-22

submission by the commission.

19-23

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

19-24

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

19-25

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

19-26

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

19-27

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

19-28

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

19-29

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

19-30

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

19-31

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

19-32

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

19-33

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

19-34

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

20-1

consent.

20-2

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

20-3

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

20-4

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

20-5

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

20-6

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

20-7

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

20-8

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

20-9

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

20-10

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

20-11

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

20-12

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

20-13

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

20-14

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

20-15

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

20-16

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

20-17

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

20-18

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

20-19

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 6. This act shall take effect upon passage.

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LC00289

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- COURTS

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     This act would vest with the governor the sole authority to nominate, on the basis of

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merit, from a list submitted by the judicial nominating commission with the advice and consent of

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the senate, all judges and magistrates, to all courts.

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     This act would take effect upon passage.

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LC00289

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