CONCORD — Although Judge James Carroll of the fourth Circuit Court, Laconia Division was honored with a Quill & Ink Award by the Nackey S. Loeb School of Communications, on the strength of an opinion of the Advisory Committee on Judicial Ethics of the New Hampshire Supreme Court, he was not at the Capitol Center for the Arts when the award was presented last night.
Carroll was recognized for his staunch defense of the right to freedom of speech as reflected by his decision to dismiss charges against two citizens who were arrested while speaking at public meetings.
However, after reviewing the circumstances, the Advisory Committee on Judicial Ethics, found that although the Code of Judicial Conduct permits Carroll to accept the award, it "prohibits the judge from accepting the award at or participating in the public event at which it will be presented."
Joseph McQuaid, president and publisher of New Hampshire Union Leader and is president and chairman of the trustees of the Nackey S. Loeb School of Communications, said yesterday that former New Hampshire Attorney General Phil McLaughlin will accept the award on Carroll's behalf.
"I don't know exactly what I will say," he added, "other than explain why he got the award and quote from his decisions."
McQuaid expressed his disdain for the committee's decision, noting that another judge who began a charity to support members of the armed forces overseas, was also told to abandon the project because it represented a conflict of interest.
An editorial in yesterday's edition of the New Hampshire Union Leader described the committee's reasoning as "tortuous."
Since the award is sponsored by a nonprofit educational institution and bestowed in association with the law, legal system or administration of justice, Carroll is entitled to accept it.
However, the Code of Judicial Conduct prohibits judges from taking part in "activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality." The committee noted that because the award ceremony will be well attended and newsworthy, it "will be a very public recognition of the judge for his rulings in two specific cases" and may appear "to be an endorsement of the judge's particular viewpoint."
The committee expressed concern that the litigants who failed to prevail in the two cases might take the judges participation in the ceremony "as a public celebration of rulings that were adverse to them" that could "undermine their confidence in the judge's independence and impartiality." Likewise, there is a risk that future litigants raising similar issues could question the judge's independence and impartiality.
Finally, the committee referred to the rule forbidding judges from "abusing the prestige of judicial office or allowing others to do so." By appearing in photographs or videotapes alongside sponsors of the awards ceremony — especially political candidates — the committee held that "the risks of exploitation are many."
Carroll was honored for his decisions in the cases of William Baer, charged with breaching the peace in Gilford and Jeffrey Clay in Alton, charged with disorderly conduct in Alton, both while speaking in public meetings.
Police removed William Baer from a meeting of the Gilford School Board when, after challenging a teacher's decision to assign ninth grade students a book he deemed inappropriate, he continued speaking after being ruled out of order. Baer was charged with two counts of breaching the peace and one count of disobeying a police officer.
In dismissing the charges, Carroll described Baer's behavior as "impolite but not criminal." The case, he wrote offers "an excellent civics lesson, a perfect case for modeling free speech guarantees." Baer's arrest, the judge ruled "cause pause by the court as to the chilling, if not silencing, of a citizen by the state for actions which do not warrant a criminal arrest or conviction."
In Alton, Jeffrey Clay began claiming that the Board of Selectmen regularly flouted the Right to Know law in December 2013 and obeyed when asked to leave a meeting a year later. In January 2015, the selectmen adopted rules for for members of the public to follow when commenting at meetings. A month later, when Clay repeated his charges against the selectboard, he was ruled out of order. When he continued to speak, he was removed from the room, placed under arrest and charged with disorderly conduct by the police.
In dismissing the charges against Clay, Carroll found that "the silencing is nothing less than censorship of the defendant's criticism given at a time and place designated by the board itself for public input." Furthermore, the judge noted that Clay "was acting within the very rules promulgated by the board as well as within his constitutional rights."
Carroll said it was "unusual" for a district court judge to have an opportunity to rule on a constitutional issue, let alone "to have lightning strike twice in the same place." He said that in both cases he considered the circumstances of the defendants before the court and the interests of the state and wrote orders protecting the right of individuals to speak freely before public bodies.