2019 -- H 5510

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LC000120

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE --COURTS -- JUDICIAL

NOMINATING COMMISSION

     

     Introduced By: Representatives Williams, Cassar, Caldwell, Almeida, and Hull

     Date Introduced: February 14, 2019

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 8-16.1-2, 8-16.1-4 and 8-16.1-6 of the General Laws in Chapter 8-

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

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     8-16.1-2. Judicial nominating commission.

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     (a) There is hereby established an independent nonpartisan judicial nominating

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commission which shall consist of nine (9) members, all of whom shall be residents of the state of

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Rhode Island, and who shall be appointed as follows:

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     (1) Within seven (7) days after June 2, 1994:

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     (i) The speaker of the house of representatives shall submit to the governor a list of at

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least three (3) attorneys;

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     (ii) The president of the senate shall submit to the governor a list of at least three (3)

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persons who may be attorneys and/or members of the public;

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     (iii) The speaker of the house of representatives and the president of the senate shall

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jointly submit to the governor a list of four (4) members of the public;

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     (iv) The minority leader of the house of representatives shall submit to the governor a list

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of at least three (3) members of the public; and

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     (v) The minority leader of the senate shall submit to the governor a list of at least three

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(3) members of the public.

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     (2) Within fourteen (14) days after June 2, 1994, the governor shall appoint to the

 

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commission:

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     (i) One person from each of the lists submitted in accordance with subsection (a)(1) of

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this section;

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     (ii) Three (3) attorneys, without regard to any of the lists; and

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     (iii) One member of the public, without regard to any of the lists.

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     (3) The governor and the nominating authorities hereunder shall exercise reasonable

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efforts to encourage racial, ethnic, and gender diversity within the commission ensure that the

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membership of the commission reflects the racial, ethnic, and gender diversity of the state's

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population.

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     (b) Members of the commission shall serve for terms of four (4) years, except that, of the

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members first appointed:

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     (1) The individual appointed from the list submitted by the minority leader of the house

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of representatives and one of the attorneys appointed by the governor without regard to any of the

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lists shall serve for one year;

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     (2) The individual appointed from the list submitted by the minority leader of the senate

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and one of the attorneys appointed by the governor without regard to any of the lists shall serve

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for two (2) years;

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     (3) The individual appointed from the list submitted jointly by the speaker of the house of

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representatives and by the president of the senate and the member of the public appointed by the

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governor without regard to any of the lists shall serve for three (3) years; and

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     (4) The individuals appointed from the lists submitted by the president of the senate and

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by the speaker of the house of representatives and one of the attorneys appointed by the governor

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without regard to any of the lists shall serve for four (4) years.

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     (c) No person shall be appointed at any time to serve more than one term as a member of

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the commission; provided, however, that a person initially appointed to serve twelve (12) months

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or less of a full four (4) year term may, upon expiration of that term, be reappointed to serve one

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full term; and provided further, however, that each member shall continue to serve until his or her

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successor is appointed and qualified. No commission member shall be a legislator, judge, or

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elected official, or be a candidate for any public office, or hold any compensated federal, state, or

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municipal public office or elected office in a political party during his or her tenure or for a period

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of one year prior to appointment. No member of the commission may hold any other public office

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(except that of notary public) under the laws of the United States, of this state, or of any other

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governmental entity for which monetary compensation is received. No members shall be eligible

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for appointment to a state judicial office during the period of time he or she is a commission

 

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member and for a period of one year thereafter. No two (2) or more members of the commission

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shall be members or employees of the same law firm, or employees of the same profit or

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nonprofit corporation. Vacancies other than those arising through the expiration of a term shall be

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filled for the unexpired portion of the term in the same manner as vacancies due to the expiration

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of a term.

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     (d) A quorum consisting of five (5) members shall be necessary in order for the

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commission to conduct any business. All names submitted to the governor by the commission

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shall be approved by at least five (5) members of the commission voting in favor of each

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selection.

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     (e) The commission shall have the power to adopt rules and procedures which aid in its

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selection of the most highly qualified nominees for judicial office. The governor shall designate a

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member of the commission to serve as chairperson, who shall serve in that capacity for the

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duration of his or her tenure. All meetings of the commission shall be subject to the open

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meetings law as defined in chapter 46 of title 42.

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     (f) The commission is hereby authorized and empowered to investigate the personal

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background of each nominee as it relates to a determination of judicial fitness through the Rhode

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Island state police and the attorney general's office, and to require full financial disclosure under

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the provisions of chapter 14 of title 36.

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     (g) The commission shall direct the performance of such administrative duties as may be

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required for the effective discharge of the obligations granted to the commission, and is hereby

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

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to make such other expenditures as are necessary for the effective performance of its functions.

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Expenses for office space, staffing, and necessary monetary outlays shall be provided by the

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department of administration as a separate line item in the state budget under the term "judicial

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nominating commission."

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     (h) Each person appointed to the commission shall, prior to exercising any authority or

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assuming any duties as a member of the commission, take an engagement of office in accordance

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with ยง 36-1-2. The governor may remove a commission member from office for neglect of duty,

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malfeasance in office, or conviction of a criminal offense. After a commission member is notified

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of any allegations against her or him in writing, the commission member shall be entitled to one

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public hearing prior to removal by the governor.

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     8-16.1-4. Criteria for selection of best qualified nominees.

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     (a) A diverse judiciary ensures that a broad array of perspectives and experiences are

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brought to the bench, reinforces public trust and confidence in the fairness of the judicial system

 

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and the administration of justice and ultimately enhances the delivery of justice and the

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judiciary's credibility and moral authority.

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     (a)(b) The commission shall consider, but is not limited to, the following factors in

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selecting the best qualified nominees: intellect, ability, temperament, impartiality, diligence,

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experience, maturity, education, publications, and record of public, community, and government

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service. Every person shall, at the time of consideration by the commission, be an attorney and

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licensed to practice law in the state of Rhode Island and be a current member of the Rhode Island

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bar association in good standing.

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     (b)(c) The commission shall exercise reasonable efforts to encourage racial, ethnic, and

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gender diversity within the judiciary of this state. To further this goal, on an annual basis, the

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commission shall report to the general assembly and to the governor on (i) the statistics regarding

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the race, ethnicity and gender of applicants considered by the commission in the previous year

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and (ii) efforts made by the commission during the previous year to encourage promote racial,

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ethnic and gender diversity within the judiciary of this state. The form of the report and the means

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by which the commission shall request the necessary information from applicants shall be

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determined by the commission pursuant to its rule-making authority, except that no applicant

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shall be required to provide the information as a prerequisite to consideration, and the identifying

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information with respect to race, ethnicity and gender shall be collected anonymously from

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applicants. The report shall be made available to the public. The commission shall also consider

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the candidate's sensitivity to historically disadvantaged classes, and may disqualify any candidate

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with a demonstrated history of bias towards any of these classes.

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     8-16.1-6. Nomination and appointment of judges.

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

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

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

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

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publicly submit a list of the names of not less than three (3), and not more than five (5), highly

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qualified persons for each vacancy to the governor which shall include a person of color. The

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

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district court, workers' compensation court, or any other state court that the general assembly

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

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

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

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submission by the commission.

 

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

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

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

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

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

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

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

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

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

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

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

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

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consent.

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

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

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

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

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

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

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

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and issued by the chairperson of the committee, or the person serving in his or her capacity. All

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such subpoenas and orders shall be served as subpoenas in civil cases in the superior court are

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served, and witnesses so subpoenaed shall be entitled to the same fees for attendance and travel as

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provided for witnesses in civil cases in the superior court. If the person subpoenaed to attend

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before the committee fails to obey the command of the subpoena without reasonable cause; refuse

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to be sworn; or to be examined; or to answer a legal and pertinent question; or if any person shall

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refuse to produce books, accounts, papers, records, and documents material to the issue, set forth

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in an order duly served on him or her; the committee by majority vote of the committee members

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present may apply to any justice of the superior court, for any county, upon proof by affidavit of

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the fact, for a rule or order returnable in not less than two (2), nor more than five (5), days,

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directing the person to show cause before the justice who made the order or any other justice of

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

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order, the justice before whom the matter is brought on for hearing shall examine under oath the

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

 

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that the person has refused without reasonable cause or legal excuse to be examined, or to answer

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a legal and pertinent question, or to produce books, accounts, papers, records, and documents

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material to the issue that he or she was ordered to bring or produce, he or she may forthwith

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commit the offender to the adult correctional institutions, there to remain until the person submits

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to do the act which he or she was so required to do, or is discharged according to law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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corporation;

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

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

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

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

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

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

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

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

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

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returned to the chairperson of the judiciary committee and destroyed.

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

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

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

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title 36.

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

 

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

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

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

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

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

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an appointment as provided in this section.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE --COURTS -- JUDICIAL

NOMINATING COMMISSION

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     This act would promote more diversity in the composition of the judicial nominating

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commission and would require that each list of qualified judicial candidates it submits to the

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governor for nomination include a person of color.

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     This act would take effect upon passage.

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