The recent murder of a woman in Berlin by her obviously dangerous husband who had been let out of jail on little or no bond by a bail commissioner, since out of her position, and possibly even a judge, has brought forward, once again, the perennial issue of how do the citizens of New Hampshire deal with judges and “quasi-judges” for whom they lose, or have little or no, confidence.
The issue is not confined to criminal or domestic violence cases, but also includes family law cases (in addition to domestic violence cases) that seem to provoke much outrage among our citizens. And, further is the perennial concern and debate about judicial overreach in usurping from the legislature issues regarding school funding.
Judges for all courts in New Hampshire, including Justices of the Supreme Court, are nominated by the Governor, subject to confirmation by a vote of at least 3 of the 5 members of the Executive Council. In other words, judges in our state take office on the basis of selection by as little as 4 people. After appointment and confirmation, a judge (or Justice) serves until they turn 70 years of age, or they die or resign. The only mechanism at present for removal of a judge in our state is the process of impeachment.
Under the state’s constitution, impeachments are initiated by bills of impeachment adopted by the House of Representatives. Thereafter, a trial is held in the Senate. In the history of our state, only two officials have been impeached, both judges.
In 1790, Superior Court Justice Woodbury Langdon was impeached for neglecting his duties, but resigned after the trial was delayed, thereby derailing the possible conclusion of the formal impeachment process.
In 2000, Chief Justice David A. Brock of the NH Supreme Court was impeached by the House on 4 counts of maladministration or malpractice, and knowingly lying under oath. But he was later acquitted by the Senate on a vote of 7 to convict and 15 for acquittal, with two-thirds of the 24 members (i.e. 16) needed for conviction.
Other than impeachment, judges in New Hampshire are subject to a detailed Code of Judicial Conduct, alleged violations of which are to be “enforced” by a Committee on Judicial Conduct established by the NH Supreme Court. The Committee may reprimand or censure a judge, but the Committee does not have the power to remove or suspend any judge- removal can only be accomplished by impeachment.
But “citizen petition recall” and judicial retention elections are procedural alternatives to impeachment.
Recall is a procedure that allows citizens to remove and replace a public official before the official’s term of office ends by adoption of a petition and a subsequent successful removal vote. Historically, recall has been used most frequently at the local level, with recall attempts at the state level having been largely unsuccessful.
Nineteen states plus the District of Columbia permit the recall of state officials: Alaska; Arizona; California; Colorado; District of Columbia; Georgia; Idaho; Illinois; Kansas; Louisiana; Michigan; Minnesota; Montana; Nevada; New Jersey; North Dakota; Oregon ; Rhode Island; Washington; & Wisconsin.
All these states lay out the right to recall elected officials in their constitutions, with the exception of Montana, where the right to recall is found only in state statutes. Additionally, each recall state except Illinois and Rhode Island further explains its recall processes in state statutes.
Many attempts have been made to recall governors throughout U.S. history, but only 4 have gathered enough petition signatures to trigger recall elections.
In 2021, California Gov. Gavin Newsom survived a recall election. In 2012, Wisconsin Gov. Scott Walker survived a recall election. In 2003, California voters successfully recalled Gov. Gray Davis, and in North Dakota in 1921, voters successfully recalled not only Gov. Lynn J. Frazier, but also the attorney general and the commissioner of agriculture. In 1988, Arizona voters submitted enough signatures to trigger a recall election for Gov. Evan Mecham, but he was impeached by the state’s House of Representatives before the scheduled recall election.
Aside from the successful recall of Governor Gray Dais and his replacement by Arnold Schwarzenegger, the most striking instance of the successful application of California citizen powers occurred in the mid-1980’s regarding Chief Justice Rose Bird of the California Supreme Court. After numerous petitions for her recall failed to qualify for appropriate ballots, she was finally removed in 1986, along with 2 of her fellow Supreme Court Justices, by votes in retention elections that mandated her and their removal.
Many states, but not New Hampshire, hold regular periodic “retention” elections as to various judges and justices. A retention election is a type of election where voters are asked whether an incumbent judge should remain in office. The judge, who does not face an actual opponent, is removed from the position if a certain percentage of voters (often 50% +1) indicate that he or she should not be “retained.” Thus, the matter is typically presented on a general election ballot as a question: Shall Justice/Judge X be retained Yes or No?
As of April 2025, at the state supreme court level, the following states use retention elections: Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, and Wyoming.
Although retention elections and citizen petition recalls have often failed to remove judges, the mere existence of those remedies serves a useful purpose in that sitting judges always know that their behavior may result in their removal from office by the voters. In contrast, sitting judges know that the impeachment remedy is so unlikely as to be essentially meaningless.
New Hampshire does not have either citizen petition recalls or retention elections for judges, either of which would require state constitutional amendments to be enacted.
A constitutional amendment in New Hampshire requires passage by both the House and Senate by super majority votes in each chamber, with subsequent presentation to the voters on a general election ballot at which a super majority of “yes” votes is required for the amendment to be adopted.
A few years ago, when this writer was serving as a state representative, he introduced a proposed constitutional amendment that would have provided for citizen petition recalls, much as it exists in wacky California and several other states. Although originally designed to be applicable to all state level officials, it was ultimately revised to be applicable only to state court judges.
Naturally, it was vigorously opposed by at least two special interest groups. The proposal was deemed inexpedient to legislate by the House committee considering it, but it was brought to the full floor of the House for a vote. In the House, it garnered less than 90 votes (out of 400), far short of the super majority required to advance it to the Senate and thence to the voters.
So, until such time as our citizens rise up and demand of their legislators that the constitution be amended to provide for citizen petition recalls or retention elections for judges, the bad behavior can continue unchecked.
