Chapter
402
2007 -- S 0467 SUBSTITUTE A
Enacted 07/06/07
A N A C T
RELATING
TO COURTS AND CIVIL PROCEDURE -- COURTS
Introduced
By: Senators McCaffrey, McBurney, Jabour, C Levesque, and Paiva-Weed
Date
Introduced: February 13, 2007
It is enacted by the General Assembly as
follows:
SECTION 1. Section
8-16-4 of the General Laws in Chapter 8-16 entitled "Commission
on Judicial Tenure and Discipline" is
hereby amended to read as follows:
8-16-4.
Employment of personnel -- Investigation of unfitness. -- (a) The
commission
is empowered hereby to engage the services of
legal, secretarial, clerical, and investigative
employees and to make such other expenditures as
are necessary for the effective performance of
its functions.
(b) The
commission, upon receiving from any person a verified statement, not
unfounded or frivolous, alleging facts
indicating that a justice of the supreme court, the superior
court, the family court, the district court, the
workers' compensation court, or the administrative
adjudication court traffic tribunal,
or a probate judge in any city or town in the state is guilty of a
violation of the canons of judicial ethics, or
of willful or persistent failure to perform his or her
duties, disabling addiction to alcoholic
beverages, drugs, or narcotics, or conduct that brings the
judicial office into serious disrepute, or that
such a judge has a physical or mental disability that
seriously interferes and will continue to
interfere with the performance of his or her duties, shall
make a preliminary investigation to determine
whether formal proceedings shall be instituted and
a hearing held. The commission may, on its
initiative, make a preliminary investigation, without
receiving a verified statement, to determine
whether formal proceedings shall be instituted and a
public hearing held.
(c) If the
preliminary investigation discloses that a charge of judicial unfitness of the
kind mentioned in this section is supported by
substantial evidence, it shall direct that a public
hearing thereon be held, and the judge shall be
notified of the investigation, the nature of the
charge, and the time and place set for a hearing
thereon. The judge shall have the right to counsel
and to confront witnesses against him or her and
shall be afforded a reasonable opportunity to
present such matters in defense as he or she may
choose. The notice shall be given by prepaid
registered or certified mail addressed to the
judge at his or her chambers or his or her last known
place of residence. The judge shall file a
written answer to the charges within twenty (20) days
after the notice has been served upon him or
her. Allegations contained in the notice that are not
denied in the answer shall be deemed admitted.
The notice and the answer shall be public
documents. The judge shall attend the public
hearing without the necessity of a subpoena being
served upon him or her; and, if he or she is
called as a witness by the commission at the public
hearing, he or she shall take the witness stand
and shall testify in the same manner as if under
subpoena.
(d) If the
preliminary investigation discloses that there exists a violation of the canons
of
judicial ethics and that violation is not one of
a serious nature, the commission may in its
discretion issue a private reprimand to the
judge. The private reprimand shall caution the judge
that the conduct complained of, if continued,
may be the cause for discipline. The private
reprimand shall include a statement of the facts
found by the commission, as a result of the
preliminary investigation, and may issue
confidential suggestions and recommendations with
respect to the judge. Any judge issued a private
reprimand shall have the right to appeal the
private reprimand within ten (10) days and
request a hearing before the commission with the
same rights accorded by this section; provided,
however, that the hearing shall not be open to the
public, and all evidence and proceedings
relating to the private reprimand shall be kept
confidential.
(e) Upon
completion of the hearings, the commission may dismiss the case on the
ground of insufficiency of proof or may
recommend to the supreme court the censure, suspension,
immediate temporary suspension, reprimand,
retirement, or removal from office of the judge
under investigation; provided, however, that the
recommendation for the removal of a justice of
the supreme court shall be subject to the
provisions of section 8-16-7(b). For the purposes of this
chapter, wherever the word "judge"
appears, it shall be construed to include probate judges in the
cities and towns of this state.
(f) The
commission shall have the same authority to temporarily exclude all spectators
from the public hearing as is possessed by
justices of the superior court in criminal cases.
SECTION 2.
Sections 8-16.1-6 and 8-16.1-7 of the General Laws in Chapter 8-16.1
entitled "Judicial Selection" are
hereby amended to read as follows:
8-16.1-6.
Nomination and appointment of judges. -- (a) The governor shall
immediately notify the commission of any vacancy
or prospective vacancy of a judge of any state
court other than the Rhode Island supreme court.
The commission shall advertise for each
vacancy and solicit prospective candidates and
shall consider names submitted from any source.
Within ninety (90) days of any vacancy the
commission shall publicly submit the names of not
less than three (3) and not more than five (5)
highly qualified persons for each vacancy to the
governor. The governor shall fill any vacancy of
any judge of the Rhode Island superior court,
family court, district court, workers'
compensation court, administrative adjudication court, or any
other state court which the general assembly may
from time to time establish, by nominating one
of the three (3) to five (5) highly qualified
persons forwarded to him or her by the commission for
the court where the vacancy occurs.
(b) The governor shall
fill any vacancy within twenty-one (21) days of the public
submission by the commission.
(c) Each
nomination shall be forwarded forthwith to the senate, and by and with the
advice and consent of the senate, each nominee
shall be appointed by the governor to serve
subject to the general laws. The senate shall,
after seven (7) calendar days of receipt of the
nomination consider the nomination, but if the
senate fails within sixty (60) days after the
submission to confirm the nominee or if the
senate does not by a majority vote of its members
extend the deliberation an additional seven (7)
calendar days, the governor shall appoint some
other person to fill the vacancy and shall
submit his or her appointment to the senate for
confirmation in like manner until the senate
shall confirm the nomination. If the nominee is
rejected by the senate, the commission shall
submit a new list of three (3) to five (5) candidates to
the governor for the purpose of nomination in
accordance with this chapter. Any new list may
include but need not be limited to the names of
any candidates who were previously submitted to
the governor by the commission but who were not
forwarded to the senate for its advice and
consent.
(d) During the
time for consideration of the nominees by the senate, the senate judiciary
committee shall conduct an investigation and
public hearing on the question of the qualifications
of the nominee or nominees. At the public
hearing, the testimony of every witness shall be taken
under oath and stenographic records shall be
taken and maintained. Further, the senate judiciary
committee shall during the course of its
investigation and hearing have the power upon majority
vote of the committee members present to issue
witness subpoenas, subpoenas duces tecum, and
orders for the production of books, accounts,
papers, records, and documents which shall be
signed and issued by the chairperson of the
committee, or the person serving in his or her
capacity. All such subpoenas and orders shall be
served as subpoenas in civil cases in the superior
court are served, and witnesses so subpoenaed
shall be entitled to the same fees for attendance
and travel as provided for witnesses in civil
cases in the superior court. If the person subpoenaed
to attend before the committee fails to obey the
command of the subpoena without reasonable
cause, refuse to be sworn, or to be examined, or
to answer a legal and pertinent question, or if any
person shall refuse to produce books, accounts, papers,
records, and documents material to the
issue, set forth in an order duly served on him
or her, the committee by majority vote of the
committee members present may apply to any
justice of the superior court, for any county, upon
proof by affidavit of the fact, for a rule or
order returnable in not less than two (2) nor more than
five (5) days, directing the person to show
cause before the justice who made the order or any
other justice of the superior court, why he or
she should not be adjudged in contempt. Upon the
return of the order, the justice before whom the
matter is brought on for hearing shall examine
under oath the person, and the person shall be
given an opportunity to be heard, and if the justice
shall determine that the person has refused
without reasonable cause or legal excuse to be
examined or to answer a legal and pertinent
question, or to produce books, accounts, papers,
records, and documents material to the issue
which he or she was ordered to bring or produce, he
or she may forthwith commit the offender to the
adult correctional institution, there to remain
until the person submits to do the act which he
or she was so required to do, or is discharged
according to law.
(e) The committee
shall, for the purpose of investigating the qualifications of the
nominee or nominees, be furnished with a report
compiled by the state police in conjunction with
the attorney general's office indicating the
determinations and findings of the state police and
attorney general's office investigations
concerning the background of the nominee or nominees,
and the report shall include, but not be limited
to, the following:
(1) Whether the
nominee has ever been convicted of or pleaded guilty to a misdemeanor
or felony in this or any other state or foreign
country;
(2) Whether the
nominee has ever filed a personal bankruptcy petition or an assignment
for the benefit of creditors in this or any
other state or foreign country; and whether the nominee
has ever been a partner in, held ten percent
(10%) or more of stock in, or held office in any sole
proprietorship, partnership, or corporation that
has been involved in bankruptcy or receivership
actions as a debtor or because of insolvency at
the time the nominee was a partner in, held ten
percent (10%) or more stock in, or held office
in any such sole proprietorship, partnership, or
corporation;
(3) Whether the
nominee has ever had a civil judgment rendered against him or her
arising out of an allegation of fraud, misrepresentation,
libel, slander, professional negligence, or
any intentional tort in this state or any other
state or foreign country;
(4) The state
police in conjunction with the attorney general's department shall provide
in their report the names and addresses of each
and every source of their information.
(f) The reports
set forth in this section shall be delivered to the chairperson and members
of the senate judiciary committee in addition to
the nominee or nominees only prior to the
commencement of the public hearing. Provided,
however, that if the nominee or nominees
withdraw or decline the appointment prior to the
public hearing then the report or reports shall be
returned to the chairperson of the judiciary
committee and destroyed.
(g) The committee
shall also require a financial statement to be submitted by each
nominee, prior to the public hearing, to the
chairperson of the senate judiciary committee, to
investigate each nominee to determine his or her
compliance with the provisions of chapter 14 of
title 36.
(h) Any associate
justice of any state court who is appointed to serve as the chief or
presiding justice of that court on an interim
basis shall retain his or her status as an associate
justice until the appointment to chief or
presiding justice is made permanent.
(i) In case a
vacancy shall occur when the senate is not in session, the governor shall
appoint some person from a list of three (3) to
five (5) persons submitted to the governor by the
commission to fill the vacancy until the senate
shall next convene, when the governor shall make
an appointment as provided in this section.
8-16.1-7.
Tenure of justices. -- The justices of the supreme court, the superior
court, the
family court, the district court, the workers'
compensation court, and the administrative
adjudication court traffic tribunal
shall hold office during good behavior.
SECTION 3. Section
36-9-5 of the General Laws in Chapter 36-9 entitled "Retirement
System-Membership and Service Credits" is
hereby amended to read as follows:
36-9-5.
Officers and employees exempt -- Former court judges and clerks. -- (a)
The
members of the general assembly and the general
officers of the state, except to the extent herein
provided, the judges of the supreme, superior,
family, district courts, the administrative
adjudication court traffic tribunal,
judges of the workers' compensation court except to the extent
herein provided, school teachers as defined by
section 16-16-1 except to the extent provided by
chapter 17 of title 16, and members of the Rhode
Island state police shall be exempt from the
provisions of chapters 8 -- 10 of this title;
provided, however, that any justice or associate justice
or judge of the supreme court, superior court,
family court, district court, or administrative
adjudication court traffic tribunal,
chairperson of the workers' compensation court, or judge of the
workers' compensation court who was a member of
the retirement system prior to becoming a
justice or associate justice or judge, shall,
upon his or her filing with the retirement board a
written waiver of all benefits under the
provisions of sections 8-3-7 -- 8-3-11 or 28-30-15 -- 28-
30-18 be permitted to elect to remain a member
of the retirement system by paying into the
retirement system such sums as provided in
section 36-10-1 computed on his or her salary as a
justice, associate justice, or judge and shall
be eligible for all benefits under this title.
(b) Any justice,
associate justice, or judge who shall have retired in accordance with the
provisions of this section and who shall be
recalled to service shall be recalled in accordance with
the provisions of section 8-3-7(b), section
28-30-15(b), or section 28-30-16, or section 28-30-
16.1.
SECTION 4. This
act shall take effect upon passage.
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LC00310/SUB
A
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