RULE 17. SCREENING AND INVESTIGATION

(a) General. An investigative officer employed by the commission will conduct the investigation aided by disciplinary counsel if deemed appropriate by the commission.

(b) Screening.

(1) Any named or anonymous organization, association, or person, including a member of the commission or staff, may make a complaint of judicial misconduct or incapacity to the commission. A complaint may be made orally or in writing.

(2) The investigative officer shall evaluate all complaints to determine whether:

(A) The person against whom the allegations are made is a judge subject to the disciplinary authority of the commission; and either

(B) The facts alleged, if true, would constitute misconduct or incapacity; or

(C) The investigative officer has grounds to believe that upon further inquiry such facts might be discovered. If not, the investigative officer shall recommend to the commission to dismiss the matter or, if appropriate, refer the complainant to another agency.

(c) Preliminary investigation.

(1) Upon receipt of a complaint, the investigative officer shall make a prompt, discreet, preliminary investigation and evaluation. Failure of a person making the complaint to supply requested additional information may result in dismissal of that complaint. The investigative officer may interview witnesses and examine evidence to determine whether grounds exist to believe the allegations of complaints. No subpoena shall be issued to obtain testimony or evidence until authorized by a member of the commission. The investigative officer will assemble documentary evidence, declarations, sworn statements, and affidavits of witnesses for consideration by the commission. The investigative officer shall recommend to the commission that it authorize a full investigation when there is evidence supporting the allegations against a respondent. The investigative officer may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. Where there are no such grounds, the matter shall be dismissed. Where there is a basis to proceed, the commission will forward those supporting records into the initial proceedings.

(2) If the complaint alleges that a respondent is suffering a possible physical and/or mental incapacity which may seriously impair the performance of judicial duties, or is exhibiting conduct which may be the result of such incapacity, the commission may order a respondent to submit to physical and/or mental examinations conducted at commission expense by a practitioner or health care provider selected by the commission. The failure or refusal of a respondent to submit to physical and/or mental examinations ordered by the commission may, in the discretion of the commission, preclude respondent from presenting the results of other physical and/or mental examinations on his or her behalf.

(3) Upon determination of the commission to commence initial proceedings, it shall direct the investigative officer to file a statement of allegations setting forth the nature of the complaint with sufficient specificity to permit a response.

(d) Initial proceedings.

(1) The respondent who is the subject of initial proceedings will be provided with a copy of the statement of allegations and shall be given a reasonable opportunity to respond.

(2) Within twenty-one days after the service of the notice to respondent, respondent may file a written response admitting or denying the allegations with the commission. Respondent shall personally review and sign any response. The proceedings will not be delayed if there is no response or an insufficient response.

(3) After considering the response, if any, the commission shall order the filing of a statement of charges if it determines that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity.

(4) After initial proceedings, the commission shall:

(A) Dismiss the case;

(B) Stay the proceedings; or

(C) Find that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity that seriously interferes with the performance of judicial duties and is permanent or likely to become permanent. Upon such a finding of probable cause, the commission shall identify the records of the initial proceedings that are the basis for the finding and order the service and filing of a statement of charges. The commission shall also identify those materials and information within the commission's knowledge which tend to negate the determination of the commission.

(5) If the commission determines that there are insufficient grounds for further commission proceedings, the respondent and the person making the complaint will be so notified.

(e) Notice of complaint to respondent. With the approval of the commission, the investigative officer may notify respondent that a complaint has been received and may disclose the name of the person making the complaint. Disclosure shall be discretionary with the commission.

(a) General. The statement of charges shall give fair and adequate notice of the nature of the alleged misconduct or incapacity. The statement of charges shall be filed at the commission's offices and a copy of the statement of charges shall be served upon respondent with proof of service filed at the commission.

(b) Amendments to statement of charges or answer. The commission, at any time prior to its decision, may allow or require amendments to the statement of charges or the answer. The statement of charges may be amended to conform to the proof or set forth additional facts, whether occurring before or after the commencement of the hearing. Except for amendments to conform to the proof by evidence admitted without objection at a hearing, if an amendment substantially affects the nature of the charges, respondent will be given reasonable time to answer the amendment and prepare and present a defense against the new matter raised.

(a) Time. Respondent shall file a written answer with the commission and serve a copy on disciplinary counsel within twenty-one days after service of the statement of charges, unless the time is extended by the commission.

(b) Waiver of privilege. The raising of a mental or physical condition by respondent as a defense constitutes a waiver of respondent's medical confidentiality privilege.

(a) Failure to answer. Failure to answer the formal charges shall constitute an admission of the factual allegations. In the event respondent fails to answer within the prescribed time, the statement of charges shall be deemed admitted. The commission shall proceed to determine the appropriate discipline.

(b) Failure to appear. If respondent fails to appear when ordered to do so by the commission, respondent shall be deemed to have admitted the factual allegations which were to be the subject of such appearance and to have conceded the merits of any motion or recommendations to be considered at such appearance. Absent good cause, the commission shall not continue or delay proceedings because of respondent's failure to appear.

(a) Disclosure.

(1) Required disclosure. Within fourteen days after the filing of the answer, disciplinary counsel shall disclose to respondent or respondent's lawyer the records identified by the commission pursuant to Rule 17(d)(4)(C), unless otherwise provided by commission protective order.

(2) Upon written demand after the time for filing an answer has expired, the commission and respondent will each disclose within fourteen days thereof, or such additional time as the commission may allow, with a continuing obligation of disclosure thereafter, the following:

(A) Names and addresses of all witnesses whose testimony that party expects to offer at the hearing;

(B) A brief summary of the expected testimony of each witness;

(C) Copies of signed or electronically or stenographically recorded statements of anticipated witnesses; and

(D) Copies of documentary evidence which may be offered.

(3) Witnesses or documentary evidence not disclosed may be excluded from evidence.

(b) Discovery following statement of charges.

(1) The taking of depositions, the requests for admissions, and all other discovery procedures authorized by Rules 26 through 37 of the Superior Court Civil Rules are available only upon stipulation or prior permission of the presiding officer upon a showing of good cause.

(2) Absent good cause, all discovery shall be completed within sixty days of the filing of the answer.

(3) Disputes concerning discovery shall be determined by the commission or presiding officer before whom the matter is pending. These decisions of the commission may not be appealed before the entry of the final order.

(a) Submission. At any time prior to the final disposition of a proceeding, respondent may stipulate to any or all of the allegations or charges in exchange for a stated discipline. The stipulation shall set forth all material facts relating to the proceeding and the conduct of respondent. The stipulation may impose any terms and conditions deemed appropriate by the commission, and shall be signed by respondent and disciplinary counsel. The agreement shall be submitted to the commission, which shall either approve or reject the agreement. If the stipulation is rejected by the commission, the stipulation shall be deemed withdrawn and cannot be used by or against respondent in any proceedings.

(b) Entry of Order. If the commission accepts the agreement, it shall enter an order in open session.

(a) Scheduling. Upon receipt of respondent's answer or upon expiration of the time to answer, the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time, and place of the hearing. Respondent will be provided at least fourteen days notice of hearing, which will also include the name or names of the commission members and the presiding officer, if any.

(b) Conduct of hearing.

(1) All testimony shall be under oath.

(2) Disciplinary counsel shall present the case in support of the statement of charges.

(3) Disciplinary counsel may call respondent as a witness.

(4) Both parties shall be permitted to present evidence and produce and cross-examine witnesses.

(5) The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, or a member of the commission, a transcript of the hearing shall be produced at the requesting party's expense.

(6) Counsel may recommend and argue for a discipline appropriate to the misconduct supported by the evidence, including argument on aggravating and mitigating factors.

(7) Disciplinary counsel and respondent may submit their respective proposed findings, conclusions, and recommendations for discipline or order of dismissal to the commission.

(8) Where a member of the commission has not heard all the evidence, that member shall not participate in any deliberations or decisions.

(9) At least six members, or their alternates, must continually be present during presentation of testimony at the hearing.

(c) Dismissal or recommendation for discipline. The commission shall dismiss the case, discipline respondent, or in the case of incapacity, recommend to the supreme court the retirement of respondent.

(d) Submission of the report. After the hearing, the commission shall file the record of the proceeding and a decision setting forth written findings of fact, conclusions of law, any minority opinions, and the order, within ninety days following the evidentiary hearing or after the filing of the transcript if one is requested, unless the presiding officer extends the time. The decision shall be announced in open session. If personal attendance is required, respondent shall have at least fourteen days notice of the announcement, unless otherwise agreed. A copy of the decision shall be served upon respondent.

(e) Motion for reconsideration. The commission decision is final fourteen days after service unless a motion for reconsideration is filed by respondent or disciplinary counsel. A motion for reconsideration, if filed, shall be specific and detailed, with appropriate citations to the record and legal authority. Any response to the motion must be filed within fourteen days after service. The motion will be decided without oral argument unless requested by the commission. If the motion for reconsideration is denied, the decision is final when the order denying the motion is filed. If the motion for reconsideration is granted, the reconsidered decision is final when filed in the commission's office.

(a) Within thirty days after the commission admonishes, reprimands, or censures a respondent, the respondent shall have a right of appeal de novo to the supreme court.

(b) Within fourteen days after the decision is final, a commission decision recommending the suspension, removal, or retirement of a respondent will be filed in the supreme court and served on the respondent. The notice of the decision served on respondent shall state the date the decision was filed in the supreme court and shall specify the period during which respondent may challenge the commission recommendation as provided in the Discipline Rules for Judges.

(c) If the commission recommendation is that respondent be removed, respondent shall be suspended, with salary (as provided by the Constitution), from that judicial position effective upon filing the recommendation with the supreme court; such suspension with pay will remain in effect until a final determination is made by the supreme court.

(d) The commission shall transmit to respondent those portions of the record required by the Discipline Rules for Judges or these rules, and shall certify the record of the commission proceedings to the supreme court.

(e) If the supreme court remands a case, the commission will proceed in accordance with the order on remand.