| The Judiciary Commission
FREQUENTLY ASKED QUESTIONS
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If you are unfamiliar with the judiciary discipline process, receiving a letter from the Judiciary Commission of Louisiana can be unsettling. In providing the following frequently asked questions, the Commission hopes to assist judges in navigating the disciplinary process and avoiding ethical missteps, where possible. We also encourage you to review Supreme Court Rule XXIII, which was substantially revised effective July 1, 2016. If you have any questions, please feel free to call Commission Counsel Kelly McNeil Legier at 504-310-2595.
IF JUDGES RECEIVE A NOTICE OF A COMPLAINT FROM THE OFFICE OF SPECIAL COUNSEL, WHAT SHOULD THEY DO?
Although the Commission understands that receiving a complaint is difficult and is personal to the judge, complaints from the Judiciary Commission are serious and should not be ignored. If a judge gets a letter from the Judiciary Commission or the Office of Special Counsel to the Judiciary Commission asking him or her to respond to a complaint, it is in the judge’s best interest to respond to the letter even if he or she believes he or she has not done anything wrong, is offended by the complaint, and/or believes the complainant is just a disgruntled litigant.
The Commission does not simply accept the allegations stated in a complaint, the Commission waits to hear from the judge before evaluating the merits of the complaint. Accordingly, if a judiciary complaint file is opened, the Office of Special Counsel will send a copy of the complaint to the judge identifying the most important factual allegations in the complaint and giving the judge a chance to respond. [Rules of the Supreme Court, Rule XXIII, Section 3(a)(4) and Rules of the Judiciary Commission, Rule IV.] If a judge gets a letter like this, he or she should develop a response or consider hiring an attorney to respond to the complaint. Sometimes, it helps to have an objective person with whom to discuss the allegations. Because Judiciary Commission complaints and all of the proceedings are confidential, the judge can only discuss the letter or the complaint with an attorney, if he or she gets an attorney to help with the complaint. The confidentiality rule does not include exceptions that would allow a judge to discuss the matter with spouses, secretaries, colleagues on the same court, relatives, or friends.
It is recommended that the judge specifically address the factual allegations identified by the Office of Special Counsel and respond with as much information that he or she possibly can in order to show that the complaint does not show anything unethical. This should include a written explanation and could include documents and items to support the explanation, such as a transcript of a proceeding; a recording of a proceeding; copies of pleadings, orders, minutes entries; pictures; docket sheets and lists of files; affidavits from the judge or witnesses (provided the judge requests the affidavits without disclosing that a complaint has been filed against him or her or has triggered the need for the affidavit).
After the judge responds, the members of the Commission will review the complaint and the judge’s response. In some cases, the file may be closed without a formal investigation, based on the judge’s response to the complaint. In other cases, an investigation may be conducted to get more information about what happened. Most complaints are resolved without being sent to the Supreme Court. Sometimes the file will just be closed and sometimes it may be closed with a reminder, or with the judge’s consent, a caution or admonishment to the judge to call certain canons to the judge’s attention. In a small number of cases, a formal hearing may be held before a hearing officer to give the Office of Special Counsel and the judge a chance to call witnesses and present other evidence to help the Commission decide whether the case should be referred to the Supreme Court. The hearings are confidential but a transcript of the hearing could become public if the case is sent to the Supreme Court.
CAN A JUDGE REQUEST AN EXTENSION OF TIME TO RESPOND TO A COMPLAINT?
YES. A judge automatically receives thirty days to respond to the initial letter from the Office of Special Counsel. The Commission understands that busy schedules, the need to secure counsel, and/or the search for transcripts, documentation, or affidavits sometimes makes the thirty-day deadline impossible to meet. If thirty days is not enough time, the judge can request an extension of time. The Commission readily allows brief extensions. If the extension request is for forty-five days or less, the judge may make his or her request directly with the Office of Special Counsel. If a judge needs more than forty-five additional days, he or she should send the extension request to Commission Counsel to forward to the Commission Chair or Commission. The Commission Chair can grant an extension for up to seventy-five days beyond the initial thirty-day deadline. However, if the judge’s circumstances require an extension of more than seventy-five days, the request will be forwarded to the entire Commission for consideration. Please keep in mind that all extensions lengthen the amount of time it takes to resolve a complaint.
MAY A RESPONDENT JUDGE CONTACT COMMISSION STAFF OR A COMMISSION MEMBER IF HE OR SHE HAS QUESTIONS ABOUT A PENDING COMPLAINT?
YES. A judge may contact Commission staff regarding a pending complaint. Commission staff can answer questions regarding complaints before the formal proceedings stage. In addition to answering procedural, scheduling, and administrative questions, Commission staff can provide guidance regarding complaint-related communications and responding to complaints. Commission staff cannot provide information regarding the Commission’s deliberations or the votes concerning a complaint.
However, Commission staff is not able to communicate as freely after a Notice of Hearing has been filed concerning a complaint involving the judge. Because the Commission’s rules do not allow ex parte communications with Commission Counsel or Hearing Officer Counsel after the Notice of Hearing is filed, the judge cannot contact staff within the Commission’s Office of Legal Counsel or its Hearing Officer Counsel without having a representative from the Commission’s Office of Special Counsel present. The ex parte rule makes an exception regarding communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits. [Rules of the Judiciary Commission, Rule XI(C)(3)(f) and (6)(c).]
In any event, a judge is not able to communicate with any individual Commission member about an open file no matter what stage of the proceeding the matter may be.
HOW LONG DOES IT USUALLY TAKE FOR AN OPEN COMPLAINT TO BE RESOLVED?
Pinpointing an exact time for resolution is difficult. The time needed to resolve a complaint differs for every complaint. If the Commission does not have jurisdiction over a complaint, it could be screened out within two to four months. Complaints that become open files take a longer time to be resolved. The resolution of a complaint that is opened could take three to six months after the judge’s response is received. If the Commission decides to conduct an investigation, and/or have a formal evidentiary hearing and then recommends discipline to the Supreme Court, resolution of a complaint could take nineteen to thirty-five months, depending upon how complicated the facts are and how many witnesses are involved. Below are the average estimates of time a complaint could spend at each stage of the proceeding:
STAGE 1 – Screening – 2-4 months
STAGE 2 – Inquiry – 3-6 months after the judge’s response is received
STAGE 3 – Investigation – 6-18 months
STAGE 4 – Hearing Before Hearing Officer – 6-12 months
STAGE 5 – Appearance Before the Commission – 3-9 months
STAGE 6 – Proceedings Before the Supreme Court – 3-6 months.
IS A JUDGE NOTIFIED OF ALL COMPLAINTS FILED AGAINST HIM/HER?
NO. A judge does not receive any notice that a complaint was filed if the complaint is screened out because it does not state sufficient facts or allegations of an ethical violation. However, if a complaint does state the requisite facts and/or allegations, the judge receives a copy of the complaint and is given time to respond to it. [See Rule XXIII, Section 3.]
CAN A JUDGE WAIVE CONFIDENTIALITY?
NO. The Commission understands that a judge has a vested interest in the confidentiality of the Commission proceeding and may have very good reasons for wanting to waive confidentiality in certain circumstances. Nevertheless, a judge is not able to unilaterally waive confidentiality. The Supreme Court has held that the confidentiality rule cannot be waived by the judge because it protects other individuals and matters besides the judge’s privacy rights, such as complainants, witnesses, and the integrity of the investigatory process. However, a judge may request a waiver of the confidentiality rule from the Supreme Court. [See Rule XXIII, Section 23(a)(1).]
MAY A JUDGE DISCLOSE A PRIOR OR PENDING COMPLAINT ON AN APPLICATION FOR PROFESSIONAL LIABILITY INSURANCE WITHOUT VIOLATING THE CONFIDENTIALITY RULE?
YES. Although Commission proceedings are confidential (unless a case is sent to the Supreme Court), an exception allows judges to disclose on an application for professional liability insurance information regarding complaints or proceedings before the Commission without violating confidentiality. [Rule XXIII, Section 23(a)(5).] The information disclosed to the insurer shall remain confidential and shall be accompanied by the following language, which must appear in all capital letters:
THE INFORMATION DISCLOSED ON THE FOLLOWING PAGE(S) IN RESPONSE TO QUESTIONS ____________ OF THE APPLICATION IS CONSIDERED STRICTLY CONFIDENTIAL PURSUANT TO LA. S.CT. RULE XXIII, SECTION 23, and LA. R.S. 44:10. THEREFORE, IT IS TO BE USED FOR UNDERWRITING PURPOSES ONLY AND CANNOT BE DISCLOSED TO ANYONE FOR ANY OTHER PURPOSE, INCLUDING ANY PUBLIC RECORDS REQUEST MADE PURSUANT TO LAW.
CAN A JUDGE HAVE AN ATTORNEY REPRESENT HIM OR HER REGARDING A COMPLAINT?
YES. A judge has the right to be represented by counsel, at his or her expense, during any stage of the proceeding. [Rule XXIII, Sections 3(a)(5) and 9.]
Further, if the judge is ultimately exonerated, the Attorney General has opined that the judge may seek reimbursement of legal fees from his or her court’s judicial expense fund. See Attorney General Opinion No. 01-149. A judge’s legal fees might also be covered by a professional liability insurance policy.
CAN THE JUDGE RECEIVE A COPY OF HIS OR HER SWORN STATEMENT GIVEN IN CONNECTION WITH AN INVESTIGATION OF A COMPLAINT?
YES. The judge is allowed to receive a copy of the sworn statements he or she has given in an investigation involving his or her own conduct. The judge can receive the statements by making a written request and paying the costs of copying the statements. [Rule XXIII, Section 3(b).]
WHAT RIGHTS DOES A JUDGE HAVE TO GATHER OR PRESERVE EVIDENCE OR SECURE WITNESS TESTIMONY DURING THE INVESTIGATION STAGE OF THE PROCEEDING?
Investigation Stage. The judge has some discovery rights during the investigation stage, but they are limited: the judge can take steps to preserve witness testimony and evidence during this stage. During the investigation stage, the judge is free to gather and preserve evidence and, if the witnesses agree to cooperate with him or her, may obtain affidavits and sworn statements; however, because Supreme Court Rule XXIII, Section 23 applies, the judge must take steps to keep the matter confidential and, consequently, cannot say that the evidence or statement is being taken or requested because of a pending complaint. In this effort, the judge should avoid mentioning the “complaint,” and should focus, instead, on the facts surrounding the incident at issue. The judge’s efforts to gather and preserve evidence and witnesses should be accomplished without interfering in any way with the Office of Special Counsel’s investigation.
During the investigation stage of the proceeding, the Commission will not be able to issue subpoenas for the judge to obtain any documents, potential evidence, or sworn statements. Also during the investigation stage, the Office of Special Counsel will not send the judge notice of scheduled sworn-statement interviews of witnesses for the complaint involving him or her, and the judge will not be able to attend the interviews. However, the judge may assist in developing a complete factual picture that could support his position by submitting to the Office of Special Counsel a list of potential witnesses or evidence that the judge believes is relevant to the investigation of the complaint.
Hearing Stage. The judge has a right to discovery if the complaint advances beyond the investigation stage of the proceeding. If the Commission determines that an evidentiary hearing is necessary to evaluate the allegations within the complaint, the judge will receive the notice of hearing, and he or she shall be entitled to “open-file” discovery. This means that the Office of Special Counsel will provide the judge with all non-privileged information and evidence relating to the allegations contained in the notice of hearing. The Office of Special Counsel will provide the “open-file” discovery within thirty days after the filing of a notice of hearing. The judge and the Office of Special Counsel are entitled to discovery to the extent available for civil proceedings. [Rule XXIII, Sections 5 and 23.]
IF THE JUDGE IS NOT COMPETENT TO ACT ON HIS OR HER BEHALF, CAN SOMEONE REPRESENT THE JUDGE?
YES. A judge who is not competent to act for himself or herself may have a curator represent him or her. The Commission shall appoint a curator ad hoc, unless the judge has a curator who will represent him or her. [Rule XXIII, Section 9(c).]
IF THE COMMISSION DECIDES TO CLOSE A COMPLAINT WITH A CAUTION OR ADMONISHMENT, DOES THE JUDGE RECEIVE NOTICE AND CAN HE OR SHE OBJECT TO THE CAUTION OR ADMONISHMENT?
YES, depending on the stage of proceedings. If the Commission decides, prior to the filing of a notice of hearing, that further proceedings are not warranted and wishes to privately resolve the matter by closing it with a caution or admonishment, it will send the judge notice of the Commission’s proposed closure with a caution or admonishment before it is issued. The judge will then have fourteen days to accept or object to the proposed caution or admonishment. However, if an evidentiary hearing has been held to evaluate the allegations within the complaint and the judge has been given the opportunity to participate and present his defenses, the Commission may close the matter with a caution or admonishment without sending prior notice to the judge if it has determined, after the hearing, that the judge violated the Code of Judicial Conduct or the Louisiana Constitution. [Rule XXIII, Sections 3(d) and 10.]
WHAT HAPPENS IF A JUDGE RECEIVES NOTICE OF THE COMMISSION’S INTENTION TO ISSUE A CAUTION OR ADMONISHMENT, BUT THE JUDGE DOES NOT RESPOND AT ALL?
A judge who does not send a response to a proposed caution or admonishment tacitly accepts the caution or admonishment. If the judge receives the Commission’s intended caution or admonishment, but sends no response by the fourteen-day deadline, the judge’s silence is deemed acceptance and will be treated as an acceptance. [Rule XXIII, Section 3(d).]
IS AN ACCEPTANCE OF A PROPOSED CAUTION OR ADMONISHMENT AN ADMISSION BY THE JUDGE THAT HE OR SHE HAS VIOLATED A JUDICIAL CANON OR THE CONSTITUTION?
YES. Tacit or expressed acceptance of a proposed caution or admonishment is equivalent to an admission. A caution or admonishment action indicates that the Commission considered the judge’s conduct to be a violation of the Code of Judicial Conduct and/or the Louisiana Constitution and did not exonerate the judge’s actions. In most instances, cautions and admonishments may be considered by the Commission in subsequent Commission proceedings and by the Supreme Court in the event the Commission makes a recommendation of discipline as a result of subsequent proceedings. [Rule XXIII, Section 3(e).]
CAN CAUTIONS OR ADMONISHMENTS BE USED IN FUTURE DISCIPLINE PROCEEDINGS BY THE COMMISSION OR THE SUPREME COURT?
MAYBE. A judge’s cautions and admonishments may be considered by the Commission in subsequent Commission proceedings and by the Supreme Court if the Commission makes a recommendation of discipline to the Supreme Court based upon subsequent disciplinary proceedings. [Rule XXIII, Section 3(e).]
However, the Commission is not allowed to use for any purpose and will not forward to the Supreme Court for consideration cautions and admonishments issued before the Rule XXIII rule-revision effective date of July 1, 2016. The Commission also will not use for any purpose or forward to the Supreme Court the underlying findings that led to the cautions or admonishments. The pre-revision prohibition regarding cautions and admonishments does NOT apply, and the Commission and Supreme Court can use them, if the cautions or admonishments were issued under any of the following circumstances:
(1) After a formal hearing,
(2) Pursuant to a Deferred Recommendation of Discipline Agreement (DRDA), or
(3) After the dispensation of a hearing before a hearing officer pursuant to Section 29(g) and (h) (i.e., stipulations). [Rule XXIII, Section 3(e).]
IS A CAUTION OR ADMONISHMENT “DISCIPLINE”?
NO. Although the Commission does not exonerate the judge when it issues a caution or admonishment, the Supreme Court has confirmed that a caution or admonishment is NOT discipline. [Rule XXIII, Section 3(d).] Cautions and admonishments are issued in cases where the Commission determines that the judge's conduct violated the Code of Judicial Conduct or Louisiana Constitution Article V, Section 25(c) but that further proceedings are not warranted based upon the facts presented in order to expeditiously resolve matters and to educate the judges in avoiding conduct or practices that may give rise to future ethical violations.
In addition, a caution or admonishment may be considered by the Commission in subsequent Commission proceedings and by the Supreme Court if the Commission makes a recommendation of discipline as a result of subsequent proceedings. [Rule XXIII, Section 3(e).]
WHAT IS THE COMPLAINANT TOLD REGARDING A COMPLAINT CLOSED WITH A CAUTION OR ADMONISHMENT?
If a judge consents to a proposal to close the file with a caution or admonishment, the Commission will inform the complainant of the file closure only. The Commission will not give the complainant any specific details of its action.
IS A JUDGE ENTITLED TO DISCOVERY AFTER A NOTICE OF HEARING HAS BEEN FILED?
YES. The judge is entitled to full discovery after a notice of hearing is filed in a proceeding. If the Commission determines that an evidentiary hearing becomes necessary to evaluate the allegations within a complaint, the judge will receive a notice of hearing, and he or she will be entitled to open file discovery. This means that the Office of Special Counsel will provide the judge with all non-privileged information and evidence relating to the allegations contained in the notice of hearing. The Office of Special Counsel will provide the “open-file” discovery within thirty days after the filing of a notice of hearing. The judge and the Office of Special Counsel are entitled to discovery to the extent available for civil proceedings. The judge will be able to ask the hearing officer to issue subpoenas to have witnesses appear to provide sworn testimony and to produce documents and evidence during discovery. Similarly, the judge can ask the hearing officer to issue subpoenas for the hearing. [Rule XXIII, Section 5 and Rules of the Judiciary Commission, Rule VII.]
In addition to the open file discovery, the judge is entitled to receive exculpatory evidence from the Office of Special Counsel. Throughout the formal proceedings, the Office of Special Counsel will provide the judge with information that is favorable to him or her and is relevant or material to the allegations contained in the notice of hearing. The Office of Special Counsel is required to provide the exculpatory information within a reasonable time after receiving it. The judge does not have to send the Office of Special Counsel a request for the information. [Rule XXIII, Section 5(d).]
DO THE RULES OF EVIDENCE APPLY TO THE EVIDENTIARY HEARING ON THE COMPLAINT?
NO. The Commission is not bound by the technical rules of evidence, and it is free to admit any material and relevant evidence, including hearsay. The Louisiana Code of Evidence serves as a guide regarding the admissibility of evidence in the Commission’s hearings. [Rules of the Judiciary Commission, Rule VIII(D).]
WHAT IS THE APPLICABLE STANDARD OF PROOF?
The judicial disciplinary proceeding is not a criminal proceeding. The allegations must be established by “clear and convincing” evidence, not proof beyond a reasonable doubt. [Rule XXIII, Section 4 and Rules of the Judiciary Commission, Rule VIII].
WHAT IS AN EVIDENTARY HEARING?
If the Commission determines that a hearing is needed and a notice of hearing has been filed, the case is sent to a Hearing Officer. The judge and the Office of Special Counsel have an opportunity to conduct discovery, and after discovery has been completed, the Hearing Officer holds a hearing. After the hearing, the Hearing Officer, with the assistance of the Hearing Officer Counsel, prepares a written report containing proposed findings of fact and conclusions of law (the “Hearing Officer Report”). The Office of Special Counsel and the judge may file post-hearing briefs and proposed findings of fact and conclusions of law to assist the Hearing Officer in making his or her findings. The Hearing Officer Report and the record of the case, including the pleadings in the case, a complete transcript of the hearing, and all of the exhibits introduced into evidence at the hearing, are filed with the Commission. The Commission then conducts a de novo review of the entire case. [See Rule XXIII, Section 29 and Rules of the Judiciary Commission, Rules VII and VIII].
DO ALL CASES PROCEED TO A HEARING WHEN A NOTICE OF HEARING IS ISSUED?
NO. Not all cases are heard at a hearing before a Hearing Officer. A judge and the Office of Special Counsel may enter into a statement of uncontested material facts stipulating to all of the factual allegations in the notice of hearing. If they do stipulate to all of the allegations, the Commission is required to approve the stipulations and grant any motion to dispense with the hearing that is filed. The Commission is not required to do so, but it may grant a motion to dispense with a hearing if a statement of uncontested material facts covering some, but not all, factual allegations in the notice of hearing is presented to and approved by the Commission. Additionally, when a qualified Hearing Officer has not been designated within thirty days after the notice of hearing is filed, the Commission, not a Hearing Officer, is required to hear the case.
WHO ARE THE HEARING OFFICERS AND HOW ARE THEY CHOSEN?
Hearing Officers are retired, sitting, or former judges appointed by the Louisiana Supreme Court to hear cases involving allegations of judicial misconduct where the Commission files a notice of hearing against a judge and determines that a hearing is needed. The function of a Hearing Officer is similar to that of a trial court judge. The Hearing Officer is responsible for making proposed factual findings regarding the allegations in a notice of hearing filed against a judge and for reaching proposed conclusions of law based on the proposed facts. The Hearing Officer does not make recommendations regarding discipline; he or she only makes proposed factual findings and conclusions of law that the Commission then reviews de novo. A Hearing Officer is chosen by “random allotment” to preside over the evidentiary hearing for a particular disciplinary matter, and is not allowed to preside over matters for judges within his or her Supreme Court district. [Rule XXIII, Section 29.]
WHERE IS THE EVIDENTIARY HEARING CONDUCTED?
The Hearing Officer determines where a hearing will take place. Hearings are typically held in New Orleans, but may be held elsewhere in the state depending on the location of witnesses and the evidence.
WHAT HAPPENS AFTER THE HEARING OFFICER REPORT HAS BEEN FILED?
After the Hearing Officer Report is filed, the Commission may require the judge to appear before the Commission at an upcoming meeting so that the Commissioners can question the judge directly and allow him to make a statement. The judge may request the opportunity to appear if the Commission does not require him or her to appear. The Commission may also require any witness who appeared at the hearing to appear before the Commission if the Commission wants to question the witness further. Based on its de novo review of the case and the appearance of the judge and any witnesses, the Commission will determine whether the Office of Special Counsel proved the case against the judge by clear and convincing evidence and will consider whether to make a recommendation of discipline to the Louisiana Supreme Court.
WHAT IS A RECOMMENDATION OF DISCIPLINE?
A Recommendation of Discipline is a recommendation from the Commission to the Louisiana Supreme Court, after the conclusion of formal proceedings before the Commission, that the Supreme Court publicly censure a judge, suspend a judge with or without pay, or remove a judge from office. The Supreme Court cannot discipline a judge unless it first receives a recommendation from the Commission. The Commission does not have any authority to issue discipline; only the Supreme Court can do that. The Commission can only recommend discipline; it cannot issue discipline. [See Rule XXIII, Sections 10, 11, and 12 and La. Const. Art. V, § 25.] Confidentiality of the proceedings ends when the Commission files a Recommendation of Discipline with the Court.
WHAT HAPPENS IF THE COMMISSION MAKES A RECOMMENDATION OF DISCIPLINE TO THE SUPREME COURT?
After the Judiciary Commission files a Recommendation of Discipline with the Louisiana Supreme Court, the Supreme Court places the case on the summary docket of the Court and provides the respondent judge and the Commission with the opportunity to submit briefs and present oral argument. After oral argument, the Court will decide whether to impose discipline on the judge. [See Rule XXIII, Section 14.]
CAN A JUDGE “SETTLE” A COMPLAINT IF HE OR SHE AGREES THAT HIS OR HER ACTIONS QUALIFY AS MISCONDUCT?
YES. At any stage of the proceeding before the Commission files a recommendation of discipline with the Louisiana Supreme Court, a judge has a right to request consent discipline, or in some instances, a deferred recommendation of discipline agreement (DRDA), provided that he or she is willing to concede that he or she has engaged in misconduct. Additionally, if a DRDA is involved, the judge also must be willing to agree to some action to avoid future misconduct and to correct the damage created by the past misconduct. [Rule XXIII, Section 31.]
WHAT IS THE DIFFERENCE BETWEEN CONSENT DISCIPLINE AND A DEFERRED RECOMMENDATION OF DISCIPLINE AGREEMENT (DRDA)?
The main difference between consent discipline and a DRDA is that one is agreed-upon public discipline. Consent discipline, once accepted by the Louisiana Supreme Court, is public, unless the matter is sealed by the Court. With a DRDA, the Commission and judge enter into an agreement to privately resolve a complaint with agreed-upon public consequences for a breach of the agreement.
If a judge agrees that his or her conduct violated the Code of Judicial Conduct or the Louisiana Constitution, he or she can agree to a specific discipline for the Supreme Court to impose publicly. “Consent discipline” allows a judge and the Commission to file a Joint Motion for Discipline by Consent, under seal, any time before a recommendation of discipline is filed with the Louisiana Supreme Court. If the Court accepts the proposed consent discipline, it enters an order disciplining the judge by consent, and the pleadings filed with the Court and the Court’s order of Consent Discipline then become public. However, the Court does not have to accept the proposed consent discipline. If the Court disagrees with the requested discipline, but wants to suggest to the parties an alternative discipline, it may conditionally reject the proposed consent discipline and allow the parties to resubmit the request. If the Court completely rejects the requested discipline, the request is considered withdrawn; the judge’s admissions within the pleadings cannot be used in any subsequent proceedings; and the filings and materials will remain confidential and cannot be disclosed or used in any other proceeding.
When circumstances warrant private resolution and a judge agrees that his or her conduct violated the Code of Judicial Conduct or the Louisiana Constitution, he or she can agree to certain actions or remedial measures to correct or avoid future problems and can agree to a public discipline if he or she does not satisfy the agreed-upon obligations. A “DRDA” is an agreement between the judge and the Commission to privately resolve a complaint if the judge
- admits that he or she violated the Code of Judicial Conduct and/or the Louisiana Constitution;
- agrees to a private admonishment;
- agrees to undertake certain obligations to try to remedy the problem (for example, make apologies to persons harmed, take continuing education courses of a certain type, establish a system to prevent future problems);
- agrees not to engage in any other misconduct during the period of the DRDA; and
- agrees that if he or she fails to keep his or her obligations under the agreement during the term of the DRDA, the Commission will submit to the Court an agreed-upon recommendation of discipline, which the judge will not contest.
The Commission agrees to defer making a recommendation of discipline to the Court if the DRDA is complied with. A DRDA remains confidential unless the judge does not comply with the DRDA’s terms and conditions. If the judge violates the DRDA, the Commission files the case with the Supreme Court, and the matter becomes a public record. If the judge complies with all the terms of the DRDA, the matter is closed and does not become public. [Rule XXIII, Sections 30 and 31(a).]
HOW IS A VIOLATION OF A DRDA ESTABLISHED?
The Commission will determine by clear and convincing evidence, after a hearing, that the judge has breached the DRDA. [Rule XXIII, Section 31(a).]
HOW LONG WILL A DRDA USUALLY LAST?
The DRDA term is usually three years, but the term could vary with the specific facts of the case.
CAN ANY JUDGE RECEIVE A DRDA INSTEAD OF HAVING THE CASE SENT TO THE SUPREME COURT?
NO. Not all cases are appropriate for resolution through a DRDA. The Commission considers the following factors when evaluating the appropriateness of a DRDA:
- The nature and seriousness of the misconduct;
- The length of service on the bench;
- The procedures/steps the judge has taken, or proposes to take, to correct the problem and avoid a recurrence of it;
- Whether the misconduct was private or public;
- Whether the judge received any private benefit as the result of engaging in the ethical misconduct; and
- Previous proven misconduct.
[Rule XXIII, Section 31(b).]
CAN A JUDGE SELF-REPORT UNETHICAL CONDUCT TO THE COMMISSION BEFORE A COMPLAINT IS FILED?
YES. Mistakes sometimes happen, and if a judge suspects that his or her conduct could qualify as misconduct, he or she may self-report the potential misconduct in writing to the Commission. The self-report, if properly presented pursuant to Rule III of the Rules of the Judiciary Commission, may serve as mitigating evidence if the Commission later determines that the conduct was unethical. A self-report must be in writing and specifically identify the conduct that the judge suspects is potential misconduct. The self-report should be sent to the Commission’s Chief Executive Officer, Commission Counsel, or Special Counsel. [Rules of the Judiciary Commission, Rule III.]
CAN A JUDGE RECEIVE GUIDANCE ON WHETHER PROPOSED CONDUCT MIGHT VIOLATE THE CODE OF JUDICIAL CONDUCT?
YES. The Supreme Court Committee on Judicial Ethics, created by the Code of Judicial Conduct, is charged with interpreting the Code upon request. If a judge wishes to receive advanced guidance regarding whether his or her conduct would qualify as misconduct, he or she may seek informal advice from the staff attorney for the Committee on Judicial Ethics, Robert Harper, or a formal ethics advisory opinion. Although a formal ethics advisory opinion is not binding on the Commission or the Louisiana Supreme Court and will not absolve the judge if the Commission later determines the conduct to be unethical, the judge’s effort in requesting the opinion can serve as a mitigating factor in the Commission’s consideration of the conduct.
If you are interested in seeking either a formal opinion or informal advice, please contact Robert Harper at 504-310-2601 or firstname.lastname@example.org. Requests for a formal opinion must be submitted in writing.
HOW LONG DOES IT TAKE FOR A JUDGE TO RECEIVE A RESPONSE TO AN ETHICS ADVISORY OPIONION REQUEST?
Formal ethics advisory opinion requests take approximately 8-10 weeks to process, but this time may be extended by the number of requests currently pending before the Committee.
IF A JUDGE WHO IS A COMPLAINANT OR A RESPONDENT IN A COMMISSION MATTER IS SUBPOENAD AS A WITNESS AND ASKED ABOUT THE COMMISSION PROCEEDINGS, WHAT CAN HE OR SHE DISCLOSE ABOUT THE PROCEEDINGS?
A complainant (regardless of whether he or she is a judge, attorney, or layperson) and a respondent cannot disclose to anyone, including the media or counsel in litigation, that he or she has filed a complaint or is the subject of a pending complaint. The Louisiana Constitution (Article V, Section 25c) and the rules of the Louisiana Supreme Court (Rule XXIII, Section 23) require that all proceedings before the Commission are confidential. Although these provisions do not allow a complainant to disclose to anyone the fact that he or she filed a complaint with the Commission or the action taken on the complaint, he or she may disclose and discuss the underlying events that led to the filing of the complaint.
If a complainant is asked directly during a deposition or at trial whether he or she has filed a complaint, or if a respondent judge is asked whether he or she is the subject of a pending or closed complaint, an appropriate response would be that the question cannot be answered because to do so in any way would violate the state constitution and Louisiana Supreme Court rule. An objection based on confidentiality should be considered. If a subpoena duces tecum is filed to request documents related to a judicial disciplinary complaint, the complainant or respondent judge should object to or attempt to quash the request. If a motion to compel is filed, an objection should be filed. If a court later issues an order requiring a complainant or respondent to comply, he or she would only be obligated to turn over what he or she has in his possession and would not be obligated to obtain anything else from anyone else, including the Commission.
HOW LONG DOES A JUDGE WHO HAS BEEN PUBLICLY DISCIPLINED HAVE TO PAY THE COURT-ORDERED COSTS, FINES, REIMBURSEMENT, OR PENALTIES? MAY THE JUDGE REQUEST A PAYMENT PLAN?
A judge has thirty days from final judgment to pay the court-ordered assessment, unless the Commission has approved a periodic payment plan. [Rule XXIII, Section 22.] The judgment is final on the fourteenth-day deadline for requesting rehearing under Supreme Court Rule IX if no rehearing is requested, or it is final on the date on which the Court rules on the request for rehearing if one is made. [Rule IX.]
Judges who are unable to pay the Court-ordered amount in a lump sum can propose, in writing, to the Commission a payment plan to pay the costs within a reasonable time period. Communications from the judge regarding his or her intention to pay is crucial because the matter could be referred to the Attorney General for collection or other proceedings could be initiated if the Commission does not receive payment or a viable payment plan from the judge.
HOW DOES A JUDGE GET SELECTED TO SIT ON THE JUDICIARY COMMISSION?
The justices of the Louisiana Supreme Court select the judge members of the Commission to serve four-year terms. [La. Const. Art. V, § 25.] Judges interested in serving on the Commission when a vacancy arises should convey to a Supreme Court justice his or her interest in being considered.
Similarly, the justices of the Supreme Court select current, retired, or former judges to serve as hearing officers for the Commission. [See Rule XXIII, Section 29(a).] Judges interested in serving as hearing officers should convey to a Supreme Court justice his or her interest in being considered. Sitting, retired, or former judges with good disciplinary histories are eligible for consideration by the Supreme Court for the pool of thirty hearing officers.
DOES SERVICE ON THE COMMISSION REQUIRE A SIGNIFICANT TIME COMMITMENT?
YES. Membership on the Commission requires a significant commitment of time. A Commissioner should be prepared:
1. To attend ten Commission meetings each year. Most meetings convene for a full day (usually on the third Friday of the month), but a few require meeting the following Saturday as well. Travel time is in addition to the meeting time.
2. To review, on a monthly basis, pending complaints and vote by ballot on certain issues presented. This is done in conjunction with the work addressed on the meeting day. The work that occurs outside of the Commission meeting can require as little as a half day and as much as two full days.
3. In cases that have proceeded to a formal hearing, to review certain pleadings that must be acted on by the Commission (most are handled by the hearing officer assigned to the case), as well as the hearing officer's findings and conclusions, the hearing transcript, and the post-hearing briefs. The amount of time required for this work varies and may range from a half day or less per month to more than one full day per month, depending on the nature and complexity of the pending cases.
4. To take turns reviewing complaints screened out by the Office of Special Counsel. As a general rule, each Commissioner will be asked to perform this duty roughly once per year. This may require a half day of time, or more. Some travel time may be required to perform this task as well, but most members take the time for this review before or after a monthly meeting.
5. In some instances, to participate in projects to improve the law and the administration of justice, usually by speaking to groups. This is voluntary, and not every Commissioner is able to engage in these activities. In the past, Commission members have addressed meetings of judges and lawyers. They have also met with staff of the Attorney General's office to discuss better education of justices of the peace. The projects change, but each year there are new opportunities in this regard.
ARE JUDGES PAID FOR THEIR SERVICE ON THE COMMISSION?
NO. All Commission members serve on a volunteer basis. Commission members are not compensated or paid an honorarium; however, they are reimbursed for expenses.
Approved by the Commission during its meeting September 23, 2016.
NOTE: To the extent that any of these Frequently Asked Questions conflict with Louisiana Supreme Court Rule XXIII, Rule XXIII shall be controlling. Similarly, to the extent that any Frequently Asked Questions conflict with the Rules of the Judiciary Commission, the Rules of the Judiciary Commission shall be controlling.