By ANDRU VOLINSKY
I requested the NH Supreme Court consider revising its rule concerning the disqualification of justices from sitting on cases when their participation presents a reasonable appearance of bias or a lack of impartiality.
Rule 51 of our Court’s rules allows members of the public and members of the bar to suggest changes to court rules. Rule 51 also provides: “The purpose of court rules is to provide necessary governance of court procedure and practice and to promote justice by ensuring a fair and expeditious process.” Recommended changes—and comments by the public about those changes—are sent to the secretary of the Court’s Advisory Committee on Rules.
Sherry Miscio,Secretary, Advisory Committee on Rules
New Hampshire Supreme Court
One Charles Doe Drive
Concord, NH 03301
The secretary refers the suggested change to the advisory committee. The advisory committee is chaired by Associate Justice Patrick Donovan. The composition of the advisory committee includes representation by the three branches of government, the public and other important people. You can find the current membership here.
If the proponent of a rules change requests a hearing, the current rules provide for a hearing before the advisory committee. The rules also allow the public to weigh in and offer their opinion about the suggested change either in writing to the secretary or by attending a scheduled hearing. The advisory committee then issues a report to the NH Supreme Court. Ultimately, it is the NH Supreme Court that decides to change a court rule.
Why have I suggested a rules change and why should you care?
I suggested the change based on my experience in the Rand school funding case in which the State seeks to reverse prior school funding cases decided by our Supreme Court since the Claremont case in 1993. Three members of the Court who will decide the appeal represented the state in prior school funding cases; namely Claremont II and the ConVal cases. A fourth member of the court was placed in the position by the dean of the executive council of appearing to have committed to reverse Claremont in order to be confirmed.
Our litigation team requested these four justices be disqualified, or recused, from the appeal because the public could reasonably view them as biased. Pursuant to the current court rule that governs disqualifications, Rule 21A, each of the challenged justices individually decided whether he reasonably appeared biased to the public.
Each of the justices took our motion as an opportunity to explain why he could set aside prior work and judge fairly. Each justice concluded that he shouldn’t be disqualified. Current rules provide for only a limited appeal to the other members of the Court of the individual justice’s decision. The members of our Court then upheld each of their colleague’s decisions in brief orders that essentially recited the standard for reconsideration and concluded we didn’t meet the standard.
The change in rules that I have suggested won’t affect the decisions already made in the Rand case. However, every citizen has a constitutional right under Part I, Article 35, to justices “as impartial as the lot of humanity will admit.” The rules of law that govern our state and our nation require the impartial administration of justice. It is in all our better interests to pursue and maintain a fair system of justice.
What change is suggested and why?
I’ve asked the Court to amend Rule 21A so that motions to disqualify a supreme court justice are referred for ruling to a randomly selected small panel of trial court judges uninvolved in the case. A disappointed litigant can then appeal the panel’s ruling to the Supreme Court, absent the justice, or justices, who are the subject of the disqualification motion. The suggested rule is at the bottom of this post.
Social science clearly demonstrates inherent limitations in the self-assessment of bias. (Or, you can’t fix what you can’t see.)
The change I have suggested is consistent with social science and will allow our judiciary to become a leader in this area of practice. Social science research demonstrates that individuals—including judges—are often unable to accurately assess their own biases.
A well-known federal judge and professor, Richard A. Posner, noted the double standard of judges in his book ‘How Judges Think’ (Harvard University Press, 2008). Judge Posner wrote that judges “use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others.” Studies in cognitive psychology have consistently shown that people are subject to unconscious biases that affect their judgment, even when they believe themselves to be acting impartially. Judges, despite their training and commitment to neutrality, are subject to the same cognitive errors and illusions as other individuals. A widely cited study of 167 federal magistrate judges found that judges were influenced by the same five common cognitive illusions that affect the rest of the population. As the authors wrote in their conclusion, “Judges, it seems, are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment.”
Permitting judges to decide their own impartiality is inconsistent with the realities of human thought and experience and the need for public confidence in the judiciary. Removing the challenged judge from the disqualification decision ensures both actual and perceived impartiality, and protects litigants’ rights while maintaining public confidence in the judiciary.
Here’s the change I suggested.
Suggested Rule 21A, Motions for Recusal [Language to be removed is struck through. Language to be added is in bold type.]
A. A motion for recusal shall: (1) be made in writing, (2) state clearly and concisely in separately numbered paragraphs each ground relied upon as a basis for recusal together with the facts alleged in support thereof and, if applicable, citations to any pertinent provision of Supreme Court Rule 38, The Code of Judicial Conduct, (3) contain a verification by affidavit of any facts upon which the motion is grounded, unless the facts are apparent from the record or from the papers on file in the case, or are agreed to and stated in a writing signed by the parties or their attorneys, (4) except for good cause shown, be filed with the court by the appealing party with the notice of appeal or by another party within twenty (20) days of the filing of the appeal, and (5) certify the date or dates when the movant first became aware of the facts set forth in the motion.
B. Except for good cause shown, failure to file a timely motion for recusal shall be deemed a waiver of the movant’s right to request recusal.
The Court’s ruling on the motion shall issue promptly. If the motion is denied, the Court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.
A motion for recusal shall be decided by the justice whose recusal is being sought. A motion to reconsider any such order shall be referred to the court for decision.
C. Upon receipt of a duly filed motion to recuse a justice of this Court that is compliant with paragraphs A and B, the clerk of court shall randomly select three judges to decide the matter of recusal. The three judges shall form a recusal panel. The members of the recusal panel shall be chosen at random from all superior court judges who would be eligible to serve as substitute judges under RSA 490:3, II. The recusal panel shall choose one of their members as chair. The initial motion seeking recusal pursuant to this rule shall be referred to the recusal panel members along with any objections or any other motions or documents relevant to recusal. Pleadings concerning recusal shall comply with all applicable procedural rules. The recusal panel shall hold hearings in its discretion. The recusal panel’s ruling on the motion to recuse shall issue promptly and shall be supported by findings of fact with respect to the allegations contained in the motion. A motion to reconsider the ruling of the recusal panel shall be referred to the Court, absent any members who are the subject of the recusal motion. If more than two justices are the subject of recusal in the same matter, the Court will assign substitute judges to decide the motion for reconsideration consistent with RSA 490:3, II.
Note, the paragraph letters are inserted in the suggested rule for clarity. Paragraph C is new.