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.
(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.
(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
(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
(4) After initial proceedings,
the commission shall:
(B) Stay the proceedings;
(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.
STATEMENT OF CHARGES
(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
(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.
FAILURE TO ANSWER/FAILURE TO APPEAR
(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
(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.
DISCLOSURE AND DISCOVERY
(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
(B) A brief summary of the
expected testimony of each witness;
(C) Copies of signed or electronically
or stenographically recorded statements of anticipated witnesses;
(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
(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
(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.
(1) All testimony shall be under
(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
(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
(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.
REVIEW BY SUPREME COURT
(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
(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