2005 -- S 1051 SUBSTITUTE A

=======

LC03089/SUB A

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2005

____________

A N A C T

RELATING TO COURTS -- JUDICIAL SELECTION

     Introduced By: Senators J Montalbano, Paiva-Weed, McBurney, Lenihan, and Algiere

     Date Introduced: April 28, 2005

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 8-2-11.1, 8-2-39, 8-2-39.1 and 8-2-39.2 of the General Laws in

1-2

Chapter 8-2 entitled "Superior Court" are hereby amended to read as follows:

1-3

     8-2-11.1. Administrator/magistrate. -- (a) Any person holding the position of

1-4

administrative clerk in the superior court who is a member of the bar of Rhode Island may be

1-5

appointed nominated administrator/magistrate by the presiding justice in his or her capacity as

1-6

administrative judge on the basis of merit, from a list submitted by an independent nonpartisan

1-7

judicial nominating commission, and by and with the advice and consent of the senate, for a

1-8

period of seven (7) years, and until a successor is nominated and qualified. Nothing contained

1-9

herein shall be construed to prohibit the reappointment of the administrator/magistrate for one or

1-10

more additional seven (7) year terms.

1-11

      (b) (1) The administrator/magistrate shall have the power to hear and determine such

1-12

matters as may be assigned to the administrator/magistrate by the presiding justice all to the same

1-13

effect as if done by a justice of the superior court.

1-14

      (2) Without limiting the generality of the foregoing powers and authority, the

1-15

administrator/magistrate is authorized and empowered to hear and determine motions in civil and

1-16

criminal proceedings, formal and special causes, to conduct arraignments, to grant or deny bail, to

1-17

accept pleas of not guilty, guilty, or nolo contendere, and to impose sentence on a plea of guilty

1-18

or nolo contendere, all to the same effect as if done by a justice of the superior court.

1-19

      (c) The administrator/magistrate may be authorized:

2-1

      (1) To regulate all proceedings before him or her;

2-2

      (2) To do all acts and take all measures necessary or proper for the efficient performance

2-3

of his or her duties;

2-4

      (3) To require the production before him or her of books, papers, vouchers, documents,

2-5

and writings;

2-6

      (4) To rule upon the admissibility of evidence;

2-7

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

2-8

examine them, and to call parties to the proceeding and examine them upon oath;

2-9

      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

2-10

than seventy-two (72) hours, pending review by a justice of the court, for failure to appear in

2-11

response to a summons or for refusal to answer questions or produce evidence or for behavior

2-12

disrupting a proceeding;

2-13

      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

2-14

than seventy-two (72) hours, pending review by a justice of the court, for failure to comply with a

2-15

pending order to provide payment or to perform any other act; and

2-16

      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

2-17

appear after having been properly served and, should the court not be in session, the person

2-18

apprehended may be detained at the adult correctional institution, if an adult, or at the Rhode

2-19

Island training school for youth, if a child, until the next session of the court.

2-20

      (d) A party aggrieved by an order entered by the administrator/magistrate shall be

2-21

entitled to a review of the order by a justice of the superior court. Unless otherwise provided in

2-22

the rules of procedure of the court, the review shall be on the record and appellate in nature. The

2-23

court shall, by rules of procedure, establish procedures for review of orders entered by the

2-24

administrator/magistrate, and for enforcement of contempt adjudications of the

2-25

administrator/magistrate.

2-26

      (e) Final orders of the superior court entered in a proceeding to review an order of the

2-27

administrator/magistrate may be appealed to the supreme court.

2-28

      (f) The administrator/magistrate shall be:

2-29

      (1) Governed by the commission on judicial tenure and discipline, chapter 16, of this

2-30

title, in the same manner as justices and judges;

2-31

      (2) Subject to all provisions of the canons of judicial ethics;

2-32

      (3) Subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

2-33

     8-2-39. General magistrate -- Appointment, duties and powers. -- (a) There is hereby

2-34

created within the superior court the position of general magistrate who shall be appointed

3-1

nominated by the chief justice of the supreme court, on the basis of merit, from a list submitted by

3-2

an independent nonpartisan judicial nominating commission, and by and with the advice and

3-3

consent of the senate for a period of seven (7) years, and until a successor is nominated and

3-4

qualified. Nothing contained herein shall be construed to prohibit the appointment of the

3-5

administrator/magistrate for one or more additional seven (7) year term. The person appointed to

3-6

serve as general magistrate shall be a member of the bar of Rhode Island. The powers and duties

3-7

of the general magistrate shall be prescribed in the order appointing him or her.

3-8

      (b) (1) The general magistrate shall assist the court in:

3-9

      (i) The determination of, monitoring, collection, and payment of restitution and court

3-10

ordered fines, fees, and costs or the ordering of community service in lieu of or in addition to the

3-11

payment of restitution, fines, fees, and costs, consistent with other provisions of the general laws;

3-12

      (ii) The determination and payment of claims under the violent crimes indemnity fund

3-13

for the Criminal Injuries Compensation Act of 1972, chapter 25 of title 12;

3-14

      (iii) The determination and payment of claims from the Criminal Royalties Distribution

3-15

Act of 1983, chapter 25.1 of title 12; and

3-16

      (iv) Such other matters as the chief justice of the supreme court in consultation with the

3-17

presiding justice and, if applicable, the chief justice of the receiving court determines are

3-18

necessary.

3-19

      (2) The chief justice of the supreme court, with the consent of the presiding justice and,

3-20

if applicable, the chief judge of a particular court, may assign the general magistrate to any court

3-21

of the unified system. When the general magistrate is so assigned he or she shall be vested,

3-22

authorized, and empowered with all the powers belonging to the justices or judges to which he or

3-23

she is specially assigned.

3-24

      (c) The general magistrate will be empowered to hear all motions, pretrial conferences,

3-25

arraignments, probable cause hearings, bail hearings, bail and probation revocation hearings, and

3-26

to review all such matters including, but not limited to the above, and to modify the terms and

3-27

conditions of probation and other court-ordered monetary payments including, but not limited to,

3-28

the extension of time for probation and court-ordered monetary payments as provided by law.

3-29

The general magistrate shall have the power to take testimony in connection with all matters set

3-30

forth herein.

3-31

      (d) The general magistrate may be authorized:

3-32

      (1) To regulate all proceedings before him or her;

3-33

      (2) To do all acts and take all measures necessary or proper for the efficient performance

3-34

of his or her duties;

4-1

      (3) To require the production before him or her of books, papers, vouchers, documents,

4-2

and writings;

4-3

      (4) To rule upon the admissibility of evidence;

4-4

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

4-5

examine them, and to call parties to the proceeding and examine them upon oath;

4-6

      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

4-7

than seventy-two (72) hours, pending review by a justice of the relevant court, for failure to

4-8

appear in response to a summons or for refusal to answer questions or produce evidence or for

4-9

behavior disrupting a proceeding;

4-10

      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

4-11

than seventy-two (72) hours, pending review by a justice of the relevant court, for failure to

4-12

comply with a pending order to provide payment or to perform any other act; and

4-13

      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

4-14

appear after having been properly served and, should the court not be in session, the person

4-15

apprehended may be detained at the adult correctional institution, if an adult, or at the Rhode

4-16

Island training school for youth, if a child, until the next session of the court.

4-17

      (e) A party aggrieved by an order entered by the general magistrate shall be entitled to a

4-18

review of the order by a justice of the relevant court. Unless otherwise provided in the rules of

4-19

procedure of the court, such review shall be on the record and appellate in nature. The court shall,

4-20

by rules of procedure, establish procedures for review of orders entered by a general magistrate,

4-21

and for enforcement of contempt adjudications of a general magistrate.

4-22

      (f) Final orders of the superior or family court entered in a proceeding to review an order

4-23

of a general magistrate may be appealed to the supreme court. Final orders of the district court

4-24

entered in a proceeding to review an order of the general magistrate may be appealed to the

4-25

superior court.

4-26

      (g) The general magistrate shall:

4-27

      (1) Receive all credits and retirement allowances as afforded justices under chapter 3 of

4-28

this title and any other applicable law, including without limitation, section 8-3-16;

4-29

      (2) Receive a salary equivalent to that of a district court judge and be subject to the

4-30

unclassified pay plan board;

4-31

      (3) Hold office for life during good behavior;

4-32

      (4) Be governed by the commission on judicial tenure and discipline, chapter 16, of this

4-33

title, in the same manner as justices and judges;

4-34

      (5) Be subject to all provisions of the canons of judicial ethics or code of judicial

5-1

conduct;

5-2

      (6) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

5-3

7-2.

5-4

      (h) The provisions of this section shall be afforded liberal construction.

5-5

      (i) The chief justice of the supreme court shall initially appoint such support staff as may

5-6

be necessary, relating to preparation, investigation, and implementation of the general

5-7

magistrate's functions. Effective November 15, 1993, the support staff shall be placed under the

5-8

supervision and management of the superior court, and new appointments or personnel changes in

5-9

the support staff shall be subject to the directions and approval of the superior court, consistent

5-10

with any applicable collective bargaining agreements. The general magistrate shall have the

5-11

power and authority to issue subpoenas and to compel the attendance of witnesses at any place

5-12

within the state, to administer oaths and to require testimony under oath. The general magistrate,

5-13

or his or her designee, may serve his or her process or notices in a manner provided for the

5-14

service of process and notice in civil or criminal actions in accordance with the rules of court.

5-15

     8-2-39.1. Special magistrate. -- There is hereby created within the superior court the

5-16

position of special magistrate, who shall be appointed nominated by the presiding justice of the

5-17

superior court, with the advice and consent of the senate, on the basis of merit, from a list

5-18

submitted by an independent nonpartisan judicial nominating commission, and by and with the

5-19

advice and consent of the senate, for a period of ten (10) seven (7) years, and until a successor is

5-20

appointed nominated and qualified. Nothing contained herein shall be construed to prohibit the

5-21

reappointment of a special magistrate for one or more additional ten (10) seven (7) year terms.

5-22

The person appointed to serve as special magistrate shall be a member of the bar of the state of

5-23

Rhode Island. The special magistrate shall have the duties, responsibilities, powers and benefits

5-24

as authorized in section 8-2-39.

5-25

     8-2-39.2. Drug court magistrate -- Appointment, duties and powers. -- There is

5-26

hereby created within the superior court the position of Drug Court Magistrate who shall be

5-27

appointed nominated by the presiding justice of the superior court on the basis of merit, from a

5-28

list submitted by an independent nonpartisan judicial nominating commission, and by and with

5-29

the advice and consent of the senate for a period of seven (7) years and until a successor is

5-30

nominated and qualified. Nothing contained herein shall be construed to prohibit the

5-31

reappointment of the drug court magistrate for one or more additional seven (7) year terms . The

5-32

person appointed to serve as Drug Court Magistrate shall be a member of the bar of Rhode Island.

5-33

The powers and duties of the Drug Court Magistrate shall be prescribed in the order appointing

5-34

him or her in addition to those described herein. The Drug Court Magistrate's term shall not

6-1

exceed three (3) years. His or her salary shall be paid not out of state funds, but rather from those

6-2

funds made available from the federal government. If federal funds become available after the

6-3

expiration of three (3) years, nothing in this article shall prohibit the Drug Court Magistrate from

6-4

being reappointed for an additional three (3) year term by the presiding justice of the superior

6-5

court. He or she shall receive a salary equivalent to that received by the special magistrate

6-6

assigned to the superior court.

6-7

     (b) The Drug Court Magistrate shall be empowered to hear and decide as a superior court

6-8

justice all matters relating to those adult offenders who come before the jurisdiction of the

6-9

superior court on any offense relating to the offender's participation in the Adult Drug Court. In

6-10

addition, the Drug Court Magistrate shall have the power to impose a period of incarceration

6-11

upon a plea of guilty or nolo contendere, and also have the power to confine any person who has

6-12

been found to be in violation of any conditions previously imposed by the superior court.

6-13

     (c) The Drug Court Magistrate shall be empowered to hear and decide as a superior court

6-14

justice all matters that may come before the superior court pursuant to chapter 11-37.1 "Sexual

6-15

Offender Registration and Community Notification."

6-16

     (d) The Drug Court Magistrate and/or the presiding justice of the superior court may fix

6-17

the venue of any person who is before the superior court as a participant in the Adult drug Court

6-18

or who is alleged to be a sexual predator, and who has filed an objection to community

6-19

notification.

6-20

     (e) The drug Court Magistrate shall be governed by the commission on judicial tenure

6-21

and discipline, chapter 8-16 in the same manner as justices and judges; shall be subject to all

6-22

provisions of the canons of judicial ethics or code of judicial conduct; and shall be subject to all

6-23

criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

6-24

     SECTION 2. Sections 8-8-8.1 and 8-8-16.2 of the General Laws in Chapter 8-8 entitled

6-25

"District Court" are hereby amended to read as follows:

6-26

     8-8-8.1. Administrator/clerk -- Magistrate. -- (a) Administrator/clerk. - There shall be a

6-27

district court administrator/clerk who shall be appointed by the chief judge in his or her capacity

6-28

as administrative head of the court, and who shall hold office at the pleasure of the administrative

6-29

judge. The administrator/clerk shall perform such duties and attend to such matters as may be

6-30

assigned to the administrator/clerk by the administrative judge, other than those duties assigned to

6-31

the chief clerk in section 8-8-19. Said duties may be assigned by the chief judge both as to the

6-32

district court established by this chapter and as to the traffic tribunal established by chapter 8.2 of

6-33

this title.

6-34

      (b) Magistrate. - Any person holding the position of district court administrator/clerk

7-1

who is a member of the bar of Rhode Island may be appointed nominated district court magistrate

7-2

by the chief judge in his or her capacity as administrative head of the court, subject to the advice

7-3

and consent of the senate, on the basis of merit, from a list submitted by an independent

7-4

nonpartisan judicial nominating commission, and by and with the advice and consent of the

7-5

senate. The district court magistrate shall hold said office for a term of twelve (12) seven (7)

7-6

years and until a successor is appointed nominated and qualified; and the magistrate shall retain

7-7

whatever right he or she may have to the position of district court administrator/clerk pursuant to

7-8

this section. Nothing herein shall be construed to prohibit the appointment of the magistrate for

7-9

more than one term. Any person holding office of district court magistrate on July 1, 1999 may

7-10

continue in full authority in said position until such time as an appointment is made and the

7-11

nominee qualified pursuant to this subsection.

7-12

      (c) The district court magistrate shall have the power to hear and determine such matters

7-13

as may be assigned to the district court magistrate by the chief judge all to the same effect as if

7-14

done by a judge of the district court, including but not limited to:

7-15

      (1) Matters relating to the determination of, monitoring, collection, and payment of

7-16

restitution and court ordered fines, fees, and costs or the ordering of community service in lieu of

7-17

or in addition to the payment of restitution, fines, fees, and costs, consistent with other provisions

7-18

of the general laws;

7-19

      (2) Arraignments and pretrial motions in misdemeanor, petty misdemeanor, violation,

7-20

and ordinance cases and initial appearances and probable cause hearings in felony cases;

7-21

      (3) Bail hearings pursuant to R.I. Const., Art. I, Sec. IX and all other bail matters

7-22

pursuant to chapter 13 of title 12 and the rules of criminal procedure, including but not limited to

7-23

motions to modify bail, bail revocation hearings, bail forfeiture hearings, and bail source

7-24

hearings;

7-25

      (4) All matters relating to fugitives from justice pursuant to chapter 9 of title 12;

7-26

      (5) Probation revocation hearings;

7-27

      (6) All matters relating to small claims and consumer claims pursuant to chapter 16 of

7-28

title 10, including any pretrial motions including motions relating to the special service of

7-29

process, the entry of defaults and default judgments, the trial of such cases and the entry of

7-30

judgment after such trials, and all matters relating to the enforcement of such judgments,

7-31

including but not limited to the ordering of installment payments and trustee process; and

7-32

      (7) Complaints for judicial review of the decision of an administrative agency pursuant

7-33

to chapter 35 of title 42 by making proposed findings of fact and recommendations for the

7-34

disposition of the complaints to a judge of the court. Any party may object to any portion of the

8-1

magistrate's proposed findings and recommendations within ten (10) days after receipt of a copy

8-2

thereof. That party shall file with the clerk of the sixth division of the district court and serve on

8-3

all parties written objections which shall specifically identify the portions of the proposed

8-4

findings and recommendations to which objection is made and the basis for the objection. A

8-5

judge shall make a de novo determination of those portions to which objection is made and may

8-6

accept, reject, or modify, in whole or in part, the findings or recommendations made by the

8-7

magistrate. Absent a timely objection filed in accordance with this subdivision, the proposed

8-8

prevailing party shall, upon expiration of the ten (10) days following the service of the

8-9

magistrate's proposed findings and recommendations, submit a proposed order for signature of

8-10

the judge to whom the case has been assigned.

8-11

      (8) All matters heard pursuant to chapter 8.2 of this title, in the traffic tribunal.

8-12

      (d) The magistrate may be authorized:

8-13

      (1) To regulate all proceedings before him or her;

8-14

      (2) To do all acts necessary or proper for the efficient performance of his or her duties;

8-15

      (3) To require the production before him or her of books, papers, vouchers, documents,

8-16

and writings;

8-17

      (4) To rule upon the admissibility of evidence;

8-18

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

8-19

examine them, and to call parties to the proceeding and examine them upon oath;

8-20

      (6) To adjudicate a person in contempt and to order him or her fined or to order him or

8-21

her imprisoned for not more than seventy-two (72) hours, pending review by a judge of the court,

8-22

for failure to appear in response to a summons or for refusal to answer questions or produce

8-23

evidence or for behavior disrupting a proceeding or other contempt of his or her authority;

8-24

      (7) To adjudicate a person in contempt and to order him or her fined or to order him or

8-25

her imprisoned for not more than seventy-two (72) hours, pending review by a judge of the court,

8-26

for failure to comply with a pending order to provide payment or to perform any other act;

8-27

      (8) To issue a capias and/or body attachment for the failure of a party or witness to

8-28

appear after having been properly served or given notice by the court and, should the court not be

8-29

in session, the person apprehended may be detained at the adult correctional institution, if an

8-30

adult, or at the Rhode Island training school for youth, if a child, until the next session of the

8-31

court;

8-32

      (9) To issue writs of habeas corpus to bring before him or her or a judge of the court any

8-33

person in jail or in prison to be examined as a witness in a suit or proceeding, civil or criminal,

8-34

pending before the court, or whose presence is necessary as a party or otherwise necessary so that

9-1

the ends of justice may be attained, and for no other purpose; and

9-2

      (10) To issue warrants of arrest and search warrants to the same extent as an associate

9-3

judge of the court.

9-4

      (e) Except as otherwise indicated, a party aggrieved by an order entered by the district

9-5

court magistrate shall be entitled to a review of the order, whether by appeal or otherwise, in the

9-6

same manner as if taken from an order issued by a judge of the court; except, that any person

9-7

aggrieved by an adjudication of contempt by the magistrate shall be entitled to a review by a

9-8

judge of the court within seventy-two (72) hours. The court shall, by rules of procedure, establish

9-9

procedures for review of contempt and adjudications of the magistrate.

9-10

      (f) The magistrate shall be:

9-11

      (1) Governed by the commission on judicial tenure and discipline, chapter 16 of this

9-12

title, in the same manner as justices and judges;

9-13

      (2) Subject to all provisions of the canons of judicial ethics;

9-14

      (3) Subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-7-2.

9-15

      (g) The provisions of this section shall be afforded liberal construction.

9-16

     8-8-16.2. District court clerk/magistrate. -- (a) Any person who is a member of the bar

9-17

of Rhode Island may be appointed nominated district court clerk/magistrate by the chief judge in

9-18

his or her capacity as administrative head of the court, on the basis of merit, from a list submitted

9-19

by an independent nonpartisan judicial nominating commission, and by and with subject to the

9-20

advice and consent of the senate. The district court clerk/magistrate shall hold that office for a

9-21

term of ten (10) seven (7) years and until a successor is nominated and qualified. Nothing herein

9-22

shall be construed to prohibit the reappointment of the district court clerk/magistrate for one or

9-23

more additional seven (7) year terms. The district court clerk/magistrate shall have the power to

9-24

hear and determine any matters that may be assigned to the district court clerk/magistrate by the

9-25

chief judge all to the same effect as if done by a judge of the district court, including, but not

9-26

limited to, matters relating to the determination of, monitoring, collection and payment of

9-27

restitution and court ordered fines, fees and costs or the ordering of community service in lieu of

9-28

or in addition to the payment of restitution, fines, fees and costs, consistent with other provisions

9-29

of the general laws. The clerk/magistrate may be assigned to hear and decide cases within the

9-30

traffic tribunal.

9-31

      (b) The clerk/magistrate may be authorized:

9-32

      (1) To regulate all proceedings before him or her;

9-33

      (2) To do all acts necessary or proper for the efficient performance of his or her duties;

9-34

      (3) To require the production before him or her of books, papers, vouchers, documents

10-1

and writings;

10-2

      (4) To rule upon the admissibility of evidence;

10-3

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

10-4

examine them and to call parties to the proceeding and examine them upon oath;

10-5

      (6) To adjudicate a person in contempt and to order him or her fined or to order him or

10-6

her imprisoned for not more than seventy-two (72) hours, for failure to appear in response to a

10-7

summons or for refusal to answer questions or produce evidence or for behavior disrupting a

10-8

proceeding or other contempt of his or her authority; provided; however, that no such

10-9

imprisonment shall occur prior to review by a judge of the court.

10-10

      (7) To adjudicate a person in contempt and to order him or her fined or to order him or

10-11

her imprisoned for not more than seventy-two (72) hours, for failure to comply with a pending

10-12

order to provide payment or to perform any other act; provided, however, that no such

10-13

imprisonment shall occur prior to review by a judge of the court.

10-14

      (8) To issue a capias and/or body attachment for the failure of a party or witness to

10-15

appear after having been properly served or given notice by the court and, should the court not be

10-16

in session, the person apprehended may be detained at the adult correctional institutions, if an

10-17

adult, or at the Rhode Island training school for youth, if a child, until the next session of the

10-18

court;

10-19

      (9) To issue writs of habeas corpus to bring before him or her or a judge of the court any

10-20

person in jail or in prison to be examined as a witness in a suit or proceeding, civil or criminal,

10-21

pending before the court, or whose presence is necessary as a party or otherwise necessary so that

10-22

the ends of justice may be attained, and for no other purpose; and

10-23

      (10) To issue warrants of arrest and search warrants to the same extent as an associate

10-24

judge of the court.

10-25

      (c) Except as otherwise indicated, a party aggrieved by an order entered by the district

10-26

court clerk/magistrate shall be entitled to a review of the order, whether by appeal or otherwise, in

10-27

the same manner as if taken from an order issued by a judge of the court; except, that any person

10-28

aggrieved by an adjudication of contempt by the district court clerk/magistrate shall be entitled to

10-29

a review by a judge of the court within seventy-two (72) hours. The court shall, by rules of

10-30

procedure, establish procedures for review of contempt and adjudications of the clerk/magistrate.

10-31

      (d) The district court clerk/magistrate shall:

10-32

      (1) Be governed by the commission on judicial tenure and discipline, pursuant to chapter

10-33

16 of this title, in the same manner as justices and judges;

10-34

      (2) Be subject to all provisions of the canons of judicial ethics;

11-1

      (3) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

11-2

7-2.

11-3

      (4) Receive any salary that may be established by the unclassified pay board. The

11-4

provisions of this section shall be afforded liberal construction.

11-5

     SECTION 3. Sections 8-10-3.1 and 8-10-3.2 of the General Laws in Chapter 8-10

11-6

entitled "Family Court" are hereby amended to read as follows:

11-7

     8-10-3.1. Magistrates -- Appointment, duties, and powers. -- (a) The court chief judge

11-8

of the family court may appoint nominate magistrates to assist the court in the conduct of its

11-9

business. A person appointed to serve as a magistrate shall be a member of the bar of Rhode

11-10

Island. The chief judge of the family court may nominate a member of the bar of Rhode Island,

11-11

on the basis of merit, from a list submitted by an independent nonpartisan judicial nominating

11-12

commission, and by and with the advice and consent of the senate for a period of seven (7) years

11-13

and until a successor is nominated and qualified. Nothing contained herein shall be construed to

11-14

prohibit the nomination of a family court magistrate for one or more additional seven (7) year

11-15

terms. The powers and duties of magistrates shall be prescribed in the order appointing them in

11-16

addition to those described herein.

11-17

      (b) In addition, the chief judge of the family court may appoint also nominate pursuant to

11-18

the above stated process, magistrates to assist the court in the enforcement and implementation of

11-19

chapter 23.1 of title 15, and to assist the family court in matters pertaining to hearings in

11-20

accordance with section 8-10-4, chapter 1 of title 14, chapter 8 of title 15, chapter 11 of title 40,

11-21

and chapter 5 of title 40.1. The magistrate will be empowered to hear all motions, pretrial

11-22

conferences, arraignments of juvenile offenders, probable cause hearings, and review of all such

11-23

matters, including but not limited to, the temporary placement, custody, disposition and adoption

11-24

of children, and the taking of testimony in conducting all hearings relative thereto.

11-25

      (c) The magistrate shall serve at the pleasure of the chief judge and his or her In addition

11-26

to the powers and duties shall be prescribed in the order appointing him or her, or in the rules of

11-27

procedure of the family court. The special magistrate may be authorized:

11-28

      (1) To regulate all proceedings before him or her;

11-29

      (2) To do all acts and take all measures necessary or proper for the efficient performance

11-30

of his or her duties;

11-31

      (3) To require the production before him or her of books, papers, vouchers, documents,

11-32

and writings;

11-33

      (4) To rule upon the admissibility of evidence;

11-34

      (5) To issue subpoenas for the appearance of witnesses, to put witnesses on oath, to

12-1

examine them, and to call parties to the proceeding and examine them upon oath;

12-2

      (6) To adjudicate a person in contempt and to order him or her imprisoned for not more

12-3

than seventy-two (72) hours, pending review by a justice of the court, for failure to appear in

12-4

response to a summons or for refusal to answer questions or produce evidence or for behavior

12-5

disrupting a proceeding;

12-6

      (7) To adjudicate a party in contempt and to order him or her imprisoned for not more

12-7

than seventy-two (72) hours, pending review by a justice of the court, for failure to comply with a

12-8

pending order to provide support or to perform any other act; and

12-9

      (8) To issue a capias and/or body attachment upon the failure of a party or witness to

12-10

appear after having been properly served and, should the family court not be in session, the

12-11

person apprehended may be detained at the adult correctional institution, if an adult, or at the

12-12

Rhode Island training school for youth, if a child, until the next session of the family court.

12-13

      (d) A party aggrieved by an order entered by a magistrate shall be entitled to a review of

12-14

the order by a justice of the family court. Unless otherwise provided in the rules of procedure of

12-15

the family court, such review shall be on the record and appellate in nature. The family court shall

12-16

by rules of procedure establish procedures for review of orders entered by a magistrate, and for

12-17

enforcement of contempt adjudications of a magistrate.

12-18

      (e) Final orders of the family court entered in a proceeding to review an order of a

12-19

magistrate may be appealed to the supreme court.

12-20

      (f) The magistrates shall be empowered to hear de novo all applications for income

12-21

withholding pursuant to chapter 16 of title 15 and appeals of administrative agency orders of the

12-22

department of human services to withhold income under chapter 16 of title 15.

12-23

      (g) The magistrates shall be empowered to hear all matters relating to the revocation or

12-24

nonrenewal of a license of an obligor due to non-compliance with a court order of support, in

12-25

accordance with chapter 11.1 of title 15.

12-26

      (h) The magistrates may be authorized by the chief judge to hear those matters on the

12-27

domestic abuse prevention calendar and the nominal calendar.

12-28

      [See section 12-1-15 of the General Laws.]

12-29

     8-10-3.2. General magistrate of the family court. -- (a) There is hereby created within

12-30

the family court the position of general magistrate of the family court who shall be appointed

12-31

nominated by the governor with the advice and consent of the senate chief judge of the family

12-32

court for a life term for a period of seven (7) years or until a successor is appointed and qualified

12-33

on the basis of merit, from a list submitted by an independent nonpartisan judicial nominating

12-34

commission, and by and with the advice and consent of the senate. Nothing contained herein shall

13-1

be construed to prohibit the reappointment of the family court general magistrate for one or more

13-2

additional seven (7) year terms.

13-3

      (b) The general magistrate shall be an attorney at law and a member in good standing of

13-4

the Rhode Island bar with a minimum of ten (10) years experience as a general magistrate in the

13-5

Rhode Island family court.

13-6

      (c) The primary function of the general magistrate shall be the enforcement of child

13-7

support decrees, orders, and law relative to child support. The general magistrate shall have all

13-8

the authority and powers vested in magistrates by virtue of sections 8-10-3, 8-10-3.1, 9-15-19, 9-

13-9

15-21, 9-14-26, 9-18-8, 9-18-9, and 36-2-3, and any other authority conferred upon magistrates

13-10

by any general or public law or by any rule of procedure or practice of any court within the state.

13-11

      (d) The chief justice of the supreme court with the agreement of the chief judge of the

13-12

family court may specially assign the general magistrate to perform judicial duties within any

13-13

court of the unified judicial system in the same manner as a judge of the district court may be

13-14

assigned pursuant to chapter 15 of this title; provided, however, that the general magistrate may

13-15

be assigned to the superior court subject to the prior approval of the presiding justice of the

13-16

superior court. When the general magistrate is so assigned he or she shall be vested, authorized,

13-17

and empowered with all the powers belonging to the justices of the court to which he or she is

13-18

specially assigned.

13-19

      (e) The general magistrate shall:

13-20

      (1) Receive all credits and retirement allowances as afforded justices under chapter 3 of

13-21

this title and any other applicable law;

13-22

      (2) Be governed by the commission on judicial tenure and discipline, chapter 16 of this

13-23

title, in the same manner as justices and workers' compensation judges;

13-24

      (3) Be entitled to a special license plate under section 31-3-47;

13-25

      (4) Receive a salary equivalent to that of a district court judge and shall be subject to the

13-26

unclassified pay plan board;

13-27

      (5) Be subject to all the provisions of the canons of judicial ethics; and

13-28

      (6) Be subject to all criminal laws relative to judges by virtue of sections 11-7-1 and 11-

13-29

7-2.

13-30

      (f) The provisions of this section shall be afforded liberal construction.

13-31

     SECTION 4. Section 8-8.2-1 of the General Laws in Chapter 8-8.2 entitled "Traffic

13-32

tribunal" is hereby amended to read as follows:

13-33

     8-8.2-1. Establishment -- Rule-making authority -- Adjudication of violations. -- (a)

13-34

There is hereby established a traffic tribunal which shall be charged with the administration and

14-1

adjudication of traffic violations within its jurisdiction. The traffic tribunal shall be under the

14-2

supervision of the chief judge of the district court, who shall be the administrative head of the

14-3

traffic tribunal and shall have the power to make rules for regulating practice, procedure and

14-4

business within the traffic tribunal. Pursuant to section 8-6-2, said rules shall be subject to the

14-5

approval of the supreme court. Such rules, when effective, shall supersede any statutory

14-6

regulation in conflict therewith.

14-7

      (b) The judges and magistrates of the traffic tribunal shall hear and determine cases as

14-8

provided by law. No district court judge appointed pursuant to chapter 8 of this title shall be

14-9

assigned to perform duties of a judge or magistrate of the traffic tribunal under this chapter. The

14-10

chief judge of the district court shall serve as the chief judge of the traffic tribunal. The chief

14-11

judge of the district court may appoint a judge or magistrate who is authorized to hear and decide

14-12

cases in the traffic tribunal to serve as administrative judge or magistrate of the traffic tribunal

14-13

and the administrative judge or magistrate shall perform such administrative duties as may be

14-14

delegated to him or her by the chief judge.

14-15

      (c) Those judges of the administrative adjudication court in active service on July 1,

14-16

1999 shall serve within the traffic tribunal. Whenever the total number of judges and magistrates

14-17

in the traffic tribunal shall be less than seven (7), the chief judge of the district court, may

14-18

nominate a member of the bar of Rhode Island, on the basis of merit, from a list submitted by an

14-19

independent nonpartisan judicial nominating commission, and by and with the advice and consent

14-20

of the senate for a period of seven (7) years and until a successor is nominated and qualified to fill

14-21

such vacancy. Nothing contained herein shall be construed to prohibit the nomination of a traffic

14-22

tribunal magistrate for one or more additional seven (7) year terms. with the advice and consent

14-23

of the senate, may, as needed, assign a duly qualified member of the bar of this state to act as a

14-24

magistrate to fill such vacancy and shall submit his or her name to the senate for confirmation.

14-25

Any magistrate assigned under this section shall serve a term of eight (8) years, and shall be in

14-26

the unclassified service of the state. Nothing herein shall be construed to prohibit the assignment

14-27

of a magistrate to more than one such term, subject to the advice and consent of the senate.

14-28

Compensation for any such magistrate shall be determined by the unclassified pay plan board.

14-29

Magistrates of the traffic tribunal shall participate in the state retirement system in the same

14-30

manner as all members of the unclassified service.

14-31

      (d) Each judge and magistrate of the traffic tribunal shall devote full time to his or her

14-32

judicial duties, except as may be otherwise provided by law. He or she shall not practice law

14-33

while holding office, nor shall he or she be a partner or associate of any person in the practice of

14-34

law.

15-1

      (e) Judges and magistrates of the traffic tribunal shall be subject to the provisions of R.I.

15-2

Const. Art. XI; to the code of judicial conduct or successor code promulgated by the supreme

15-3

court of this state, to the jurisdiction of the Commission on Judicial Tenure and Discipline in

15-4

accordance with chapter 16 of this title; and to the administrative authority and control of the

15-5

chief justice of the supreme court in accordance with chapter 15 of this title, except that section 8-

15-6

15-3 shall not apply to judges and/or magistrates of the traffic tribunal.

15-7

      (f) The traffic tribunal shall be a tribunal of record and shall have a seal with such words

15-8

and devices as it shall adopt.

15-9

      (g) Judges and magistrates of the traffic tribunal shall have the power to administer oaths

15-10

and affirmations.

15-11

      (h) Administrative/supervisory officials. - (1) There shall be an assistant to the

15-12

administrative judge or magistrate of the traffic tribunal who shall be appointed by and serve at

15-13

the pleasure of the chief judge and who shall perform such clerical and administrative duties as

15-14

may be assigned to him or her by the chief judge of the district court and the administrative judge

15-15

or magistrate of the traffic tribunal. The assistant to the administrative judge or magistrate shall

15-16

have the power to administer oaths and affirmations within the state.

15-17

      (2) There shall be a clerk of the traffic tribunal who shall be appointed by and serve at

15-18

the pleasure of the chief judge of the district court; provided, however, that, effective July 1,

15-19

1999, the first clerk of the traffic tribunal shall be that person holding the position of

15-20

administrator/clerk of the administrative adjudication court as of May 1, 1998, and that person

15-21

shall hold office for the balance of a term of twelve (12) years which began on September 1,

15-22

1992, without the necessity of appointment by the governor or advice and consent of the senate.

15-23

The clerk of the traffic tribunal shall exercise his or her functions under the direction and control

15-24

of the chief judge of the district court and the administrative judge or magistrate or the traffic

15-25

tribunal. The clerk of the traffic tribunal shall have the power to administer oaths and affirmations

15-26

within the state.

15-27

      (i) Clerical Personnel/Court Recorders. - (1) The chief judge of the district court shall

15-28

appoint deputy clerks and assistance clerks for the traffic tribunal to serve at his or her pleasure.

15-29

All such clerks may administer oaths and affirmations within the state.

15-30

      (2) The chief judge of the district court shall appoint sufficient court recorders to enable

15-31

all proceedings to be recorded by electronic means and who shall assist in such other clerical

15-32

duties as may be prescribed from time to time by the chief judge of the district court.

15-33

      (3) The chief judge of the district court shall employ such clerical assistants in addition

15-34

to deputy clerks as may be required in the traffic tribunal to perform clerical duties.

16-1

     SECTION 5. Chapter 8-16.1 of the General Laws entitled "Judicial Selection" is hereby

16-2

amended by adding thereto the following section:

16-3

     8-16.1-8. Nomination and appointment of magistrates, clerk/magistrates and

16-4

administrator/magistrates. – (a) The procedure for the nomination and appointment of

16-5

magistrates, clerk/magistrates, and/or administrator/magistrates of the superior court, family

16-6

court, district court, and the traffic tribunal pursuant to those provisions in the general laws under

16-7

chapter 2 of title 8, chapter 8 of title 8, chapter 10 of title 8, and chapter 8.2 of title 8 and any

16-8

other state court or statutory enactment regarding magistrates, clerk/magistrates, and/or

16-9

administrator/magistrates that the general assembly may from time to time establish shall be as

16-10

follows.

16-11

     (b) The chief judge or the presiding justice of the particular court where a vacancy exists

16-12

for a magistrate, clerk/magistrate, and/or administrator/magistrate shall immediately notify the

16-13

commission of any vacancy or prospective vacancy of any such magistrate, clerk/magistrate, or

16-14

administrator/magistrate for that particular court. The commission shall advertise for each

16-15

vacancy and solicit prospective candidates and shall consider names submitted from any source.

16-16

Within ninety (90) days of any vacancy the commission shall publicly submit the names of not

16-17

less than three (3) and not more than five (5) highly qualified persons for such vacancy to the

16-18

chief justice, chief judge, or presiding justice entitled by law to make the nomination. The chief

16-19

justice, chief judge, or presiding justice entitled by law to make the nomination shall fill any

16-20

vacancy of any magistrate, clerk/magistrate, and/or administrator/magistrate of the Rhode Island

16-21

superior court, family court, district court, traffic tribunal, or any other state court or statutory

16-22

enactment regarding magistrates, clerk/magistrates, and/or administrator/magistrates which the

16-23

general assembly may from time to time establish, by nominating one of the three (3) to five (5)

16-24

highly qualified persons forwarded to him or her by the commission for the court where the

16-25

vacancy occurs.

16-26

     (c) The chief justice, chief judge, or presiding justice entitled by law to make the

16-27

nomination shall fill any vacancy within twenty-one (21) days of the public submission by the

16-28

commission.

16-29

     (d) Each nomination shall be forwarded forthwith to the senate, and by and with the

16-30

advice and consent of the senate, each nominee shall be appointed by the chief justice, chief

16-31

judge, or presiding justice entitled by law to make the nomination to serve subject to the

16-32

applicable general laws. The senate shall, after seven (7) calendar days of receipt of the

16-33

nomination consider the nomination, but if the senate fails within sixty (60) days after the

16-34

submission to confirm the nominee or if the senate does not by a majority vote of its members

17-1

extend the deliberation an additional seven (7) calendar days, the chief justice, chief judge, or

17-2

presiding justice entitled by law to make the nomination shall nominate some other person to fill

17-3

the vacancy and shall submit his or her nomination to the senate for confirmation in like manner

17-4

until the senate shall confirm the nomination. If the nominee is rejected by the senate, the

17-5

commission shall submit a new list of three (3) to five (5) candidates to the chief justice, chief

17-6

judge, or presiding justice entitled by law to make the nomination for the purpose of nomination

17-7

in accordance with this chapter. Any new list may include, but need not be limited to, the names

17-8

of any candidates who were previously submitted to the chief justice, chief judge, or presiding

17-9

justice entitled by law to make the nomination by the commission but who were not forwarded to

17-10

the senate for its advice and consent.

17-11

     (e) During the time for consideration of the nominees by the senate, the senate judiciary

17-12

committee shall conduct an investigation and public hearing on the question of the qualifications

17-13

of the nominee or nominees. At the public hearing, the testimony of every witness shall be taken

17-14

under oath and stenographic records shall be taken and maintained. Further, the senate judiciary

17-15

committee shall during the course of its investigation and hearing have the power upon majority

17-16

vote of the committee members present to issue witness subpoenas, subpoenas duces tecum, and

17-17

orders for the production of books, accounts, papers, records, and documents which shall be

17-18

signed and issued by the chairperson of the committee, or the person serving in his or her

17-19

capacity. All such subpoenas and orders shall be served as subpoenas in civil cases in the superior

17-20

court are served, and witnesses so subpoenaed shall be entitled to the same fees for attendance

17-21

and travel as provided for witnesses in civil cases in the superior court. If the person subpoenaed

17-22

to attend before the committee fails to obey the command of the subpoena without reasonable

17-23

cause, refuse to be sworn, or to be examined, or to answer a legal and pertinent question, or if any

17-24

person shall refuse to produce books, accounts, papers, records, and documents material to the

17-25

issue, set forth in an order duly served on him or her, the committee by majority vote of the

17-26

committee members present may apply to any justice of the superior court, for any county, upon

17-27

proof by affidavit of the fact, for a rule or order returnable in not less than two (2) nor more than

17-28

five (5) days, directing the person to show cause before the justice who made the order or any

17-29

other justice of the superior court, why he or she should not be adjudged in contempt. Upon the

17-30

return of the order, the justice before whom the matter is brought on for hearing shall examine

17-31

under oath the person, and the person shall be given an opportunity to be heard, and if the justice

17-32

shall determine that the person has refused without reasonable cause or legal excuse to be

17-33

examined or to answer a legal and pertinent question, or to produce books, accounts, papers,

17-34

records, and documents materials to the issue which he or she was ordered to bring or produce, he

18-1

or she may forthwith commit the offender to the adult correctional institution, there to remain

18-2

until the person submits to do the act which he or she was so required to do, or is discharged

18-3

according to law.

18-4

     (f) The committee shall, for the purpose of investigating the qualifications of the nominee

18-5

or nominees, be furnished with a report compiled by the state police in conjunction with the

18-6

attorney general's office indicating the determinations and findings of the state police and

18-7

attorney general's office investigation concerning the background of the nominee or nominees,

18-8

and the report shall include, but not be limited to, the following:

18-9

     (1) Whether the nominee has ever been convicted of or pleaded guilty to a misdemeanor

18-10

or felony in this or any other state or foreign country;

18-11

     (2) Whether the nominee has ever filed a personal bankruptcy petition or an assignment

18-12

for the benefit of creditors in this or any other state or foreign country; and whether the nominee

18-13

has ever been a partner in, held ten percent (10%) or more of stock in, or held office in any sole

18-14

proprietorship, partnership, or corporation that has been involved in bankruptcy or receivership

18-15

actions as a debtor or because of insolvency at the time the nominee was a partner in, held ten

18-16

percent (10%) or more stock in, or held office in any such sole proprietorship, partnership, or

18-17

corporation;

18-18

     (3) Whether the nominee has ever had a civil judgment rendered against him or her

18-19

arising out of an allegation of fraud, misrepresentation, libel, slander, professional negligence, or

18-20

any intentional tort in this state or any other state or foreign country;

18-21

     (4) The state police in conjunction with the attorney general's department shall provide in

18-22

their report the names and addresses of each and every source of their information.

18-23

     (f) The reports set forth in this section shall be delivered to the chairperson and members

18-24

of the senate judiciary committee in addition to the nominee or nominees only prior to the

18-25

commencement of the public hearing. Provided, however, that if the nominee or nominees

18-26

withdraw or decline the appointment prior to the public hearing then the report or reports shall be

18-27

returned to the chairperson of the judiciary committee and destroyed.

18-28

     (g) The committee shall also require a financial statement to be submitted by each

18-29

nominee, prior to the public hearing, to the chairperson of the senate judiciary committee, to

18-30

investigate each nominee to determine his or her compliance with the provisions of chapter 14 of

18-31

title 36.

18-32

     (h) In case a vacancy shall occur when the senate is not in session or in recess, the chief

18-33

justice, chief judge, or presiding justice entitled by law to make the nomination shall appoint

18-34

some person from a list of three (3) to five (5) persons submitted to the chief justice, chief judge,

19-1

or presiding justice entitled by law to make the nomination by the commission to fill the vacancy

19-2

until the senate shall next convene, when the chief justice, chief judge, or presiding justice

19-3

entitled by law to make the nomination shall make an appointment as provided in this section.

19-4

     SECTION 6. This act shall take effect upon passage and apply to all nominations and

19-5

appointments of magistrates, clerk/magistrates, and/or administrator/magistrates made after the

19-6

effective date hereof.

=======

LC03089/SUB A

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO COURTS -- JUDICIAL SELECTION

***

20-1

     This act would provide that superior court magistrates, district court magistrates and

20-2

family court magistrates and traffic tribunal magistrates would be subject to the same

20-3

appointment procedure as judges.

20-4

     This act would take effect upon passage and apply to all nominations and appointments

20-5

of magistrates, clerk/magistrates, and/or administrator/magistrates made after the effective date

20-6

hereof.

=======

LC03089/SUB

=======