Ezel / Ethics Opinions / JUDICIAL-NH

May a retired judge on senior active status serve as an alternate on a town planning or zoning board?

Short answer The Committee permitted the appointment because the Code treated senior active judges as part time, while requiring the judge to avoid matters involving the board.
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JUDICIAL-NH
Issued
August 4, 2010
Source
View Original PDF

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This page answers the general question as of 2010. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2010
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A retired judge serving in senior active status asked whether he could accept appointment as an alternate on a town planning board or zoning board of adjustment.

The Committee said Section 4C(2) would bar this governmental position for a regular judge, but the Code treated a senior active judge as part time and exempted part time judges from that section.

The judge could not hear an appeal of a board decision in which he participated. The Committee also said he should decline any matter involving the board on which he sat, even if he had not participated in the particular decision. It left other town related disqualification questions for individual cases.

Common questions

Q: Does Section 4C(2) bar the senior active judge from joining the board?

A: No. The Committee said the part time judge exemption allowed the appointment.

Q: Could the judge hear an appeal from a board decision in which he participated?

A: No. The opinion cited the disqualification rule for personal knowledge of disputed facts.

Q: What if the judge did not participate in a board decision?

A: The Committee still said he should decline any matter involving the board on which he sits as an alternate.

Background and rules framework

The opinion applied the then effective New Hampshire Code of Judicial Conduct Sections 4C(2) and 3E, plus the Application of the Code provisions treating senior active judges as part time judges.

Citations and references

New Hampshire Code of Judicial Conduct: Sections 4C(2), 3E, 3E(1), 3E(1)(a); Application of the Code Sections B and C(1)(b). Statute cited: RSA 493-A:1, II.

See also

Source

Original opinion text

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