CASES INVOLVING ALLEGATIONS OF MENTAL OR PHYSICAL INCAPACITY
(a) Initiation of incapacity
proceeding. An incapacity proceeding can be initiated by complaint,
by a claim of inability to defend in a disciplinary proceeding, or
by an order of involuntary commitment or adjudication of incompetency.
(b) Proceedings to determine
incapacity generally. All incapacity proceedings shall be conducted
in accordance with the procedures for disciplinary proceedings, except:
(1) The purpose of the incapacity
proceedings shall be to determine whether respondent suffers from
an incapacity which is permanent or likely to become permanent and
which seriously interferes with respondent's ability to perform
(2) If the commission concludes
that respondent suffers from an incapacity, it shall recommend retirement
(3) If it appears to the commission
at any time during the proceedings that respondent is not competent
to act, or if it has been previously judicially determined that
respondent is not competent to act, the commission will appoint
a guardian ad litem for respondent unless respondent already has
a guardian who will represent respondent's interests. In the appointment
of a guardian ad litem, consideration may be given to the wishes
of the members of respondent's immediate family. The guardian or
guardian ad litem may claim and exercise any right and privilege,
including without limit retaining counsel, and make any defense
for respondent which respondent could have claimed, exercised, or
made if competent. Any notice to be served on respondent will also
be served on the guardian or guardian ad litem.
(c) Waiver. The raising
of mental or physical condition as a defense to or in mitigation of
a statement of charges constitutes a waiver of medical privilege.
(1) The commission shall designate
one or more qualified medical, psychiatric, psychological or other
experts to examine respondent prior to the hearing on the matter.
The expert or experts shall report to the commission and the parties.
(2) After receipt of the examination
report, disciplinary counsel and respondent may agree upon proposed
findings of fact, conclusions, and order. The stipulated disposition
shall be submitted to the commission for a recommendation to the
supreme court. The final decision on the recommendation shall be
made by the court.
(3) If the stipulated disposition
is rejected by the court, it shall be deemed withdrawn and cannot
be used by or against respondent in any proceedings.
from incapacity status.
(1) No respondent retired based
upon an incapacity proceeding may resume active status except by
order of the supreme court.
(2) Any respondent retired based
upon an incapacity proceeding shall be entitled to petition for
reinstatement of eligibility.
(3) Upon the filing of a petition
for reinstatement of eligibility, the commission may take or direct
whatever action it deems necessary or proper to determine whether
the incapacity has been removed, including a direction for an examination
of respondent by or through qualified medical, psychological, or
other experts, or qualified program or referral, designated by the
(4) With the filing of a petition
for reinstatement of eligibility, respondent shall be required to
disclose the name of each qualified medical, psychological, or other
expert, or qualified program or referral whom or in which respondent
has been examined or treated since the transfer to retirement status.
Respondent shall furnish to the commission written consent to the
release of information and records relating to the incapacity if
requested by the commission or commission-appointed medical or psychological
REINSTATEMENT OF ELIGIBILITY
An individual, whose eligibility
for judicial office had been removed by the supreme court, or by resignation
and stipulated order in a proceeding before the commission, may file
with the commission a petition for reinstatement of eligibility. The
petition shall set forth the residence and mailing address of the petitioner,
the date of removal by the supreme court, or resignation and stipulated order in the proceeding before the commission and a concise statement
of facts justifying reinstatement. The petition shall be a public
The commission may refer the petition to the investigative
officer for investigation of the character and fitness of the petitioner
to be eligible for holding judicial office. The investigative officer
may seek and consider any information from any source that may relate
to the issues of character and fitness or the reinstatement. The investigation shall be confidential.
shall make an affirmative showing by clear, cogent and convincing evidence,
that reinstatement will not be detrimental to the integrity and standing
of the judiciary and the administration of justice, or be contrary to
the public interest.
In cases where the supreme court has removed the individual's eligibility for judicial office, the commission will recommend to the supreme court
in writing that the petitioner should or should not be reinstated to
eligibility to hold judicial office as provided by these rules and the
Discipline Rules for Judges. In cases where the individual stipulated in a proceeding at the commission level to ineligibility for judicial office, the commission shall deliberate in executive session, and issue a public decision granting or denying the petitioner's reinstatement request for eligibility to hold judicial office. The commission will provide a copy of the
recommendation or decision to petitioner or petitioner's lawyer.
shall be responsible, and shall make adequate provision, for payment
of all costs and reasonable attorneys' fees in these proceedings in
a manner determined by the commission. Failure to pay the amount assessed
shall be grounds to dismiss the petition.
(a) Whenever the commission or
supreme court enters an order of discipline which includes terms and
conditions that prescribes behavior for, or requires a corrective
course of action by, the respondent, the investigative officer shall
investigate, evaluate and report on compliance with the order. If
the commission has reason to believe that further disciplinary action
is appropriate, the commission shall conduct an initial proceeding.
The investigation and initial proceeding shall be conducted as provided
in Rule 17 and shall be confidential. Compliance proceedings shall
be conducted in accordance with the procedures for disciplinary proceedings
under these rules, except as provided in subsection (b).
(b) Upon application and submission
of sufficient information by respondent, the commission may find that
respondent has complied with or satisfied the terms and conditions
of a disciplinary order. The commission may concur with the application,
dispense with further compliance proceedings and enter an order certifying
respondent's compliance with the disciplinary order and shall make
public the application and information upon which it based its conclusions,
except as otherwise provided by protective order.
(c) This rule does not limit any
other power to enforce an order of the commission or decision of the