RULE XXIII. THE JUDICIARY COMMISSION
25 of Article V of the Constitution creating the judiciary commission and
authorizing this court to adopt rules pertinent thereto, the following shall
be applicable to all complaints, investigations, hearings, and proceedings before
the judiciary commission.
In this rule, unless context or subject matter otherwise requires:
(a) 'Commission' means the judiciary commission;
(b) 'Judge' means a justice or a judge of a court of this state, including a commissioner, a magistrate, a justice of the peace, and a mayor who performs judicial functions;
(c) 'Chairman' includes the acting chairman;
(d) 'Counsel' means the counsel designated by the commission to gather and present evidence before the commission with respect to the charges against a judge;
(e) 'Discipline' means censure, suspension with or without salary, removal from office, or involuntary retirement; with respect to a mayor who performs judicial functions, 'discipline' means censure or suspension with salary from the performance of judicial functions.
(f) 'Shall' is mandatory and 'may' is permissive; and
(g) The masculine gender includes the feminine gender.
(h) “Hearing officer” means any person designated by the Supreme Court pursuant to Section 29(a) of this rule to hear and report to the commission. [added effective December 1, 2007] [effective date amended October 11, 2007]
(a) The Commission, upon receiving a complaint, not obviously unfounded or frivolous, alleging facts indicating that a judge is guilty of willful misconduct relating to his official duty, or willful and persistent failure to perform his duty, or persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or conduct while in office which would constitute a felony, or that he has a disability that seriously interferes with the performance of his duties and said disability is or is likely to become permanent, shall make a preliminary investigation to determine whether a hearing should be held on the question of the discipline of the judge. The Commission may make such preliminary investigation on its own motion.
An anonymous complaint may not be reviewed or investigated unless it states facts, not mere conclusions, that can be independently verified.
(b) The judge shall be notified of the investigation, the nature of the charge, and the name of the person making the complaint, if any, or that the investigation is on the commission's own motion, and shall be afforded reasonable opportunity in the course of the preliminary investigation to present such relevant and/or material matters as he may choose.
(c) If, in the opinion of a majority of the commission, the preliminary investigation does not disclose sufficient cause to warrant further proceedings, none shall be had, and the judge and the complainant shall be so notified.
(d) Closed files of prior proceedings
against a judge may be referred to by the Commission at any stage of the current
(a) After the preliminary investigation
has been completed, if the commission concludes that a hearing should be instituted,
the commission shall, without delay, issue a written notice to the judge advising
him of the planned proceedings to inquire into the charges against him. Such
proceedings shall be entitled:
BEFORE THE JUDICIARY COMMISSION OF LOUISIANA
IN RE: Judge ______________
(b) The notice shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which such charges are based. The judge proceeded against shall be required to plead and answer within fifteen days from the date of service of a copy of the complaint. All pleadings shall be filed in an original, which shall be verified, and nine legible copies.
(c) All exceptions, whether dilatory, declinatory, or peremptory, and the answer, must be filed at one and the same time. If the judge should not appear or plead and answer within the time allowed, the commission may, nevertheless, proceed.
(d) If the commission shall be satisfied
by investigation that the judge resides out of the state, or has departed from
the state, or cannot, after due diligence, be found within the state, or conceals
himself to avoid service of citation, the commission shall appoint an attorney
at law to represent the judge, against whom all proceedings shall be carried
on contradictorily, with the same effect as if the judge had been personally
served. The amount of compensation for such service shall be fixed by the commission.
(a) Notices, citations, subpoenas, and other process for compelling the attendance of witnesses or the production of books, papers, documents, and other evidentiary matter, shall be issued in the name of the commission by the chairman or the chief executive officer (judicial administrator) when such notice, citation, subpoena, or other process is deemed relevant or material to an investigation or hearing.
(b) The judge and the commission are
entitled to discovery to the extent available for civil proceedings.
shall order a hearing to be held before it concerning the discipline of the
judge. The commission shall set a time and place for hearing and shall give
notice of such hearing by service on the judge at least ten days prior to the
which the commission may order shall be held in any place that the commission
finds most convenient, in any parish in the state, and it may adjourn the session
from time to time or to any other place or other parish the commission may see
fit, after giving due notice to the judge.
(a) At the time and place set for the hearing, the commission shall proceed with the hearing, whether or not the judge has filed an answer or appears at the hearing. The counsel shall present the case in support of the charges.
(b) The failure of the judge to answer or to appear at the hearing shall not, standing alone, be taken as evidence of the truth of the facts alleged to constitute grounds for discipline.
(c) The proceedings at the hearing shall
be reported by suitable means.
(a) In proceedings involving his discipline, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or for the production of books, papers, documents, and other evidentiary matter.
(b) When a transcript of the testimony has been prepared, a copy thereof shall, upon request, be provided to the judge.
(c) If the judge is adjudged insane or
incompetent or if it appears to the commission at any time during the proceedings
that he is not competent to act for himself, the commission shall appoint a
curator ad hoc unless the judge has a curator who will represent him. In the
appointment of such curator ad hoc, preference shall be given, wherever possible,
to members of the judge's immediate family. The curator or curator ad hoc may
claim and exercise any right and privilege and make any defense for the judge
with the same force and effect as if claimed, exercised, or made by the judge,
if competent; and whenever this rule provides for serving or giving notice or
sending any matter to the judge, such notice or matter shall be served, given,
or sent to the curator or curator ad hoc.
If the commission
finds good cause, it shall recommend to the supreme court the discipline of
the judge. The affirmative vote of a majority of the commission is required
for a recommendation of discipline of a judge or for dismissal of the proceedings.
The commission shall keep a record of all proceedings
concerning a judge. The commission's determination shall be entered in the record
and notice thereof shall be served on the judge. In all proceedings resulting
in a recommendation to the supreme court for discipline, the commission shall
prepare a transcript of the evidence and of all proceedings therein and shall
make written findings of fact and conclusions of law with respect to the issues
of fact and law in the proceedings.
Upon making a determination recommending discipline of a judge, the commission shall promptly file the original and seven copies of the recommendation certified by the chairman or executive officer of the commission, the transcript, the findings, and the conclusions, with the clerk of the supreme court who shall immediately serve the judge with notice of such filing, together with a copy of such recommendation, findings, and conclusions.
Application for permission to file additional evidence may be filed by either party within ten days after the filing of the recommendations, transcript, findings, and conclusions with the clerk of the supreme court. The application shall be verified and shall specify the grounds on which the application is based, with certification of service of a copy of the application on the opposing party.
In those cases wherein this court permits
the introduction of additional evidence, the court may, in its discretion, remand
the case to the commission and direct that the commission receive the additional
evidence. After the receipt of such additional evidence, the commission shall
re-examine the entire matter in the light of the additional evidence and redetermine
the necessity for a recommendation to this court.
As soon as the record has been completed in this court,
the case shall be placed on the summary docket of this court and set down for
argument and submission in open court. The parties shall have the right to file
briefs conforming with Rule VII of this court. The briefs for the commission
shall be filed not later than two weeks before the date fixed for argument and
the briefs for the judge shall be filed not later than three days before the
date fixed for the argument. Briefs for each party shall be accompanied by a
certificate of the party filing the brief, or of the attorney representing the
party, that a copy was delivered to the opposing party or his attorney.
for the commission shall have the right to open and close the argument and the
judge or his attorney shall have the right to answer the opening argument.
In any case
forwarded to this court by the commission such notices, citations, subpoenas,
and other process as may become necessary shall be issued by the clerk of this
court or by one of his deputies.
issued by the commission or by the clerk of this court, or one of his deputies,
such notices, citations, subpoenas, or other process may be served by certified
mail, by a person designated by the commission or the said clerk, or by the
sheriff (civil sheriff in the Parish of Orleans) of the domicile or residence
of the person to whom the subpoena or other process is directed, provided that
personal service may be made by the sheriff of any parish in which the party
to whom the subpoena or other process is directed may be found.
for the summoning of witnesses shall be made to the commission or to the clerk
of this court, as appropriate. If the court or the commission has reason to
believe in any case that the judge is abusing the privilege of summoning witnesses
without advancing the costs, the court or the commission may put a limit upon
the number of witnesses whom the judge may summon without advancing costs.
If a witness
whose testimony is material to the cause resides out of the state, or is absent
from the state, or resides out of the parish in which the hearing is to be held,
or is unable to appear in person, either before this court or before the commission,
the testimony of the witness may be taken according to the forms prescribed
by law for the taking of such testimony in civil cases in the district courts
of this state.
If any person
shall fail to obey any notice, citation, subpoena, or process issued by the
commission or this court, or if any other occasion shall arise for proceeding
against any person for being in contempt of the authority of the court or of
the commission, the commission shall certify the fact to this court, and thereupon
the court shall proceed to determine whether the party whose conduct is complained
of is in contempt of the authority of the commission, and, if so, to punish
the offending party as for contempt of court.
procedure for hearings before the commission shall be as adopted and promulgated
by the commission insofar as such rules provide a full and fair hearing and
are consistent herewith.
of special counsel shall file an itemized cost statement with the judiciary
commission in any case in which the commission convenes a hearing. In cases
where the commission recommends the discipline of a judge, the commission shall
review counsel's cost statement and shall recommend to the court that all or
any portion of the costs incurred by the office of special counsel, as well
as costs the commission has incurred, be taxed against the judge. The commission's
recommendation shall be included in the record filed in this court in the form
of an itemized cost statement. The court, in its discretion, may tax all or
any portion of the costs recommended by the commission.
(a) All documents filed with, and evidence and proceedings before the judiciary commission are confidential. The commission may provide documents, evidence and information from proceedings to the Louisiana Attorney Disciplinary Board in appropriate cases when approved by this court. In such cases, the confidentiality provisions of La. S. Ct. Rule XIX, Section 16A shall be maintained. The record filed by the commission with this court and proceedings before this court are not confidential.
In the event a judge who has received notice of an anticipated judiciary commission filing in accordance with Rule XV of the rules of the judiciary commission, moves in advance of the filing to place any or all of the anticipated judiciary commission filing under seal, the judiciary commission shall file under seal its recommendations, findings of fact and conclusions of law, the transcript of the proceedings, and exhibits. The filing shall remain under seal until such time as the court has acted upon the judge's motion.
The confidentiality provisions of the first paragraph of this subpart shall not be applicable to matters that are pending before the commission when a judge retires or resigns from judicial office, and thereafter qualifies to run for another elective public office. When a retired or resigned judge qualifies for any elective office, the following documents and information in the custody of the commission, that were not disposed of by the commission at the time of the judge’s retirement or resignation, shall be subject to public disclosure: (1) any open or pending complaints filed against the judge; (2) any response by the judge to the initial inquiry by the commission to the pending complaint(s); (3) any formal charges authorized by the commission; (4) any answers and/or exceptions to the formal charges; (5) any stipulations of fact that have been agreed to by special counsel and the judge that have been approved by the commission; (6) any joint recommendations with respect to legal conclusions and recommendations as to judicial discipline that have been accepted by the commission; (7) the transcript of any hearing before the commission; (8) any evidence introduced at the hearing before the commission; and (9) any written findings of fact and conclusions of law that are authored by the commission. The commission’s investigatory and deliberation materials shall remain confidential. Confidentiality shall be maintained as to all matters that have been disposed of by the commission at the time of the judge’s retirement or resignation. [Enacted effective August 29, 2007]
(b) Members of the Judiciary Commission, the Chief Executive Officer of the Commission, Special Counsel, Commission Counsel, and their staffs shall be absolutely immune from civil suit for all conduct in the course of their official duties. [amended effective October 17, 2001]
(c) A former attorney member of the commission shall not, for a period of two years following the end of his or her term as a member of the commission, appear before the commission as counsel for a judge whose conduct has been placed at issue in commission proceedings. [added effective November 8, 2001]
administrator is the chief executive officer of the judiciary commission, and
in that capacity shall perform such duties as prescribed by the commission.
permitted by law to engage in the practice of law is subject to the judicial
disciplinary proceedings of the Commission for conduct arising from or performed
in his capacity as an attorney. Action against such a judge by the Commission
shall not preclude disciplinary action against him by the appropriate authority
concerning his license to practice law.
Section 26. Reinstatement of Eligibility to Qualify for Judicial Office Following Removal. Any former judge who has been removed from office by the Supreme Court pursuant to La. Const. Art. V § 25 (C) cannot and is prohibited from qualifying to become a candidate for any judicial office until certified eligible by this Court. A judge who has been removed from office shall not be eligible to seek certification for eligibility to qualify for judicial office if (1) he or she was removed from office after being convicted of any felony or a misdemeanor involving moral turpitude, or after the Court has determined that he or she has engaged in conduct that would constitute a felony, whether or not there was a conviction, and (2) the Court states in its order of removal that the judge is permanently barred from seeking future judicial office. In the event the Court does not permanently prohibit the former judge from seeking future judicial office, the judge may, as provided hereafter, apply to the Judiciary Commission for a recommendation to the Court that the removed judge be declared eligible to qualify for judicial office.
(a) Not before and only after five years from the date the Court’s order of removal became final, the former judge (hereinafter “respondent”) may file a Petition for Reinstatement of Eligibility to Qualify for a Judicial Office (hereafter “the petition”) with the Judiciary Commission of Louisiana. The petition shall contain the respondent’s arguments why the reinstatement of eligibility is appropriate under this rule. The respondent bears the burden of proving his/her eligibility by clear and convincing evidence.
(b) The petition shall be filed under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the respondent meets the criteria hereinafter specified. Upon the filing of a petition, the proceeding is public. Commission and Special Counsel deliberations, as well as the deliberative and investigatory materials maintained by those entities, remain confidential. The Court may, on motion of either the Commission or the respondent, seal the record of the proceedings as it relates to medical records of the respondent, and for any other compelling reason, in the interest of justice.
(c) At the same time the respondent files a Petition for Reinstatement of Eligibility to Qualify for a Judicial Office, the respondent shall also publish a notice of the petition in the official journal of every parish in the election district from which the respondent was elected prior to his/her removal. The notice shall inform the public about the petition and shall request that any individuals file notice of their opposition or concurrence with the judiciary commission within 30 days. The notice shall include the mailing address and telephone number of the Judiciary Commission.
(d) If the respondent was removed wholly or partially on the basis of a disability and/or impairment, including an addiction to alcohol or drugs, the respondent shall include with his or her petition pertinent documentation, information, and evidence demonstrating that the disability, impairment and/or addiction has been removed or is under control and not likely to recur. The respondent shall disclose in the petition the name of each and every psychiatrist, psychologist, physician, hospital and other institution by whom or in which the respondent has been examined or treated since the date his or her removal from judicial office became final. The respondent shall furnish written consent to the Judiciary Commission for the release of information and records relating to the disability, addiction, or other condition, if requested by the Judiciary Commission. If it deems necessary, the Judiciary Commission may order and the respondent shall undergo a physical and/or mental evaluation by an appropriate professional of the Judiciary Commission’s selection, the report of which shall be delivered to the Commission prior to a hearing on the petition.
(e) In formulating a recommendation regarding the respondent’s petition, the Judiciary Commission may consider the following non-exclusive factors and/or conditions, and the respondent’s compliance with the applicable factors and/or conditions:
(1) If the respondent’s removal from office was based, in whole or in part, on his or her conviction of a misdemeanor, evidence regarding the disposition and/or completion of the related sentence;
(2) If the respondent’s removal was based, in whole or part, on his or her conviction of a felony (and the Court has not ordered permanent removal, as provided for above), evidence regarding the disposition and/or completion of the related sentence or any pardon;
(3) Any pending criminal charge, whether misdemeanor or felony, shall be fully disclosed, and the respondent shall explain why the pending charge(s) should not result in a denial of his/her petition;
(4) Where alcohol or drug abuse formed the basis for the respondent’s removal, in addition to the requirements of Section 26(d), the respondent shall not be reinstated as eligible to qualify unless he or she has:
· pursued appropriate rehabilitative treatment and been certified by a reputable care facility to be drug or alcohol free, as applicable, and in compliance with the care plan established for the respondent;
· remained alcohol or drug free, as applicable, for at least one year; and
· has demonstrated that he or she is likely to continue to abstain from alcohol or other drugs, as applicable.
In assessing this criterion, the Judiciary Commission may consult with and rely upon expert opinions and/or reports of the Lawyer Assistance Program;
(5) The respondent’s past and current status with the Louisiana State Bar Association, if applicable, including meeting all requirements imposed upon lawyers with regard to continuing legal education and payment of all dues and assessments;
(6) The respondent has fully complied with the terms and conditions of all prior disciplinary orders or agreements. In this regard, the respondent shall certify that there are no pending complaints, investigations, or formal charges filed against him or her with the Office of Disciplinary Counsel or the Attorney Disciplinary Board. In the event any complaint(s), investigation(s), or formal charge(s) are pending against the respondent, such matters shall be fully disclosed. The respondent shall explain why the pending complaint(s), investigation(s), or charge(s) should not result in the denial of the petition. Further, the respondent shall set forth and describe in detail any such complaints, investigations or formal charges lodged or undertaken against him or her with respect to lawyer conduct, but which have been closed or resolved during the time since the judge’s removal from office and explain why such matters should not result in a denial of the petition;
(7) Notwithstanding the conduct for which the respondent was removed, whether the respondent has the requisite honesty and integrity to hold judicial office;
(8) Whether the respondent has timely paid all costs cast against him or her by the Court in connection with Judiciary Commission and/or lawyer disciplinary proceedings;
(9) If applicable, the respondent shall obtain a certification from the Client Assistance Fund that no payments have been made by the Fund to any of the respondent’s clients. To the extent that Client Assistance Funds have been paid to qualifying clients, the respondent shall obtain a certification from the Fund that the Fund has been reimbursed in its entirety, or alternatively, that a payment plan is in effect which will result in reimbursement to the Fund. The Judiciary Commission may take into consideration whether or not the respondent’s client has been made whole by either the respondent or the Client Assistance Fund; and
(10) Whether the respondent has corrected any problem or situation adverse to others that arose as the result of the misconduct which led to his or her removal, assuming the possibility of a remedy therefor.
(f) Upon the filing of the petition, the Judiciary Commission shall review the contents thereof and determine whether to investigate the factors bearing on the petition for eligibility to run for judicial office. If the Judiciary Commission deems necessary, the Commissioners shall conduct a hearing as soon as practical after conclusion of an investigation, if any. The Office of Special Counsel shall act under the direction of the Commission with respect to the investigation, if any, and hearing, if any, on the issues presented.
Within 60 days of the filing of the petition, the Commission shall advise the respondent in writing if it intends to investigate the matter and/or order a hearing. The Commission shall within 60 days after the conclusion of the investigation and/or hearing, or within 60 days after the filing of the petition if the Commission does not order an investigation and/or hearing, file its recommendation with this Court. The Court, in its discretion, may order oral argument on the Commission’s recommendation.
(g) The Commission may recommend the assessment of hard costs upon the respondent as the members deem necessary. No reinstatement will become effective prior to the respondent’s payment of costs assessed by the Court, upon recommendation of the Judiciary Commission.
(h) If the Court finds that the respondent has satisfied the criteria or has presented good and sufficient reason, this Court may deem the respondent eligible to qualify to run for judicial office and may issue written reasons therefor. Within 30 days of any Court decision reinstating the respondent’s eligibility, the respondent shall file into the record of the Court, and serve upon the Judiciary Commission, an affidavit specifying that all assessed costs have been paid to the Judiciary Commission.
(i) A petition may be filed no more than once per calendar year and after the first filing, no sooner than one year from the date of the Court’s decision denying respondent’s previous petition. Following the denial of a petition, the Judiciary Commission may decline to make a further recommendation to the Court concerning the respondent’s eligibility to run for judicial office unless the respondent submits substantial evidence not previously submitted to the Judiciary Commission for consideration in an earlier petition.
[repealed and reenacted effective January 1, 2008]
Section 27. Interim Disqualification.
(a) Recommendation. The Judiciary Commission, without the necessity of a hearing, and upon determining that a judge who is subject to the jurisdiction of this Court:
(1) has been indicted or charged with a serious crime under state or federal law; or
(2) upon receiving substantial, credible evidence which establishes probable cause that a judge may have violated Article V, §25(C) of the Constitution or may have committed a violation of the Code of Judicial Conduct and may pose a substantial threat of serious harm to the public or the administration of justice;
may recommend to the Court that the judge be immediately disqualified from exercising any judicial function, pending further proceedings before the Judiciary Commission or the Court. For the purpose of this rule, the term "serious crime" means
(1) any felony; or
(2) any other lesser crime that reflects adversely on the judge's honesty, trustworthiness or fitness as judge.
(b) Evidence; service. The Judiciary Commission shall append to the recommendation it files with the Court the evidence and documents which, in its view, justifies the interim disqualification. The recommendation for interim disqualification shall be personally served upon the respondent judge. Within seven days of service of the recommendation for interim disqualification, the respondent judge may file with the Court an opposition to the recommendation and append relevant rebuttal evidence. A copy of the opposition shall be filed with the Judiciary Commission.
(c) Order. Upon consideration of the recommendation of interim disqualification and any opposition, the Supreme Court may enter an order pursuant to La. Const. Art. V, §25(C) immediately disqualifying the judge from exercising any judicial function, pending final disposition of the disciplinary proceeding predicated upon the conduct causing the harm; deny the motion; or take any other action it considers appropriate.
(d) Confidentiality. In the event the recommendation for interim disqualification is filed before a recommendation of discipline is filed with the Court, the recommendation for interim disqualification shall be filed under seal. In the event the Court orders the interim disqualification of a judge, the Commission's recommendation, any opposition, and the Order of Interim Disqualification shall be matters of public record, unless otherwise ordered by the Court.
(e) Dissolution of Interim Disqualification. A judge who has been disqualified pursuant to this section may move the Court for a dissolution of the order of disqualification upon a showing of relevant facts indicating a material change in circumstances relating to the Order of Interim Disqualification. A copy of the motion for dissolution shall be filed with the Judiciary Commission. The Commission may file an opposition to the motion, or a concurrence in the motion, within seven days of filing. Following receipt of the response or expiration of the time period for receiving a response from the Commission, the Court shall consider and act upon the motion.
(f) Effect on later Commission or Court Action. Interim disqualification of a judge shall not preclude action by the Commission or the Court on the same conduct or charge that formed the basis for the interim disqualification. Acquittal, dismissal or conviction of the criminal charge shall not preclude proceedings by the Commission or the Court on the conduct that formed the basis for the charge.
Any period of interim disqualification imposed under this section shall not be applied to reduce any period of suspension which may ultimately be imposed by the Court, unless the Court so directs in its final Order imposing discipline.
(g) Interim Disqualification by Consent. A judge against whom any crime has been charged, or against whom allegations of misconduct have been or may be made, may at any time move the Court to enter an order of interim disqualification from the exercise of judicial functions, with or without pay, pending final disposition of judicial disciplinary proceedings. A copy of the motion shall be filed with the Judiciary Commission. The Commission may file a concurrence or other response with the Court within seven days of the filing. Thereafter, the Court shall consider and act upon the motion.
Any judge who is constitutionally or statutorily prohibited from practicing law, and who has been suspended or disqualified pursuant to an Order of this Court, shall not practice law during the period of time in which the judge has been suspended or disqualified. [enacted effective October 26, 2006]
Section 29. Hearing Officers.
(a) Designation; authority. This court may designate no less than ten, and no more than twenty-five, sitting, former, or retired judges to serve as hearing officers to hear and report to the commission in accordance with the provisions of sections five through nine and eleven of this rule. The court may also designate to serve as hearing officers sitting, former or retired judges who are serving, or have served, on courts of limited jurisdiction, such as city courts and juvenile courts. Justices of the peace may not be appointed as hearing officers. Such hearing officer shall be empowered to conduct hearings, administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents or other evidence that the hearing officer may deem relevant or material to the subject of the hearing. [amended effective June 14, 2013]
(1) Except as provided hereafter, in each case wherein the commission authorizes formal charges with respect to the alleged misconduct of a judge, a hearing officer shall be appointed to commence proceedings, as more fully set forth below.
(b) Random Allotment and Venue. From the hearing officer designees of the court, the commission shall select a hearing officer for each case by random allotment to conduct hearings pursuant to sections five through nine and eleven of this rule. The random allotment procedure shall not, however, include any designee from the supreme court district where the respondent judge presides. Furthermore, in order to help insure that the hearing officers receive an equivalent number of cases, any designated hearing officer to whom a case has been randomly allotted shall not be included in the next four case allotments in which the hearing officer is eligible to serve.
The venue of hearing officer proceedings and any hearing to be conducted by a hearing officer shall be governed by Section 7 of this rule.[amended effective November 29, 2007]
(c) Exceptions and motions; hearing officer bound by Code of Judicial Conduct.
(1) The commission shall decide all exceptions and the following motions:
(i) any motion which would be determinative of the merits of the case;
(ii) a motion to confirm or disaffirm the findings of the hearing officer;
(iii) a motion made prior to the appointment of the hearing officer, except that the commission may refer such motion to the hearing officer when such referral is not inconsistent with the other provisions of this section; and
(iv) a motion to proceed without appointing a hearing officer for a particular proceeding, as more fully set forth below.
(2) In each case where the commission is designated to decide a motion, such decision shall be made by a majority of the commission at the next regularly scheduled meeting, except that in cases where the hearing officer notifies the commission of a motion which he or she believes should be decided expeditiously, the hearing officer shall notify the commission in writing through its chief executive officer or commission counsel, who shall poll the commission for disposition on the motion.
(3) The designated hearing officer may decide all other motions, subject to the hearing officer’s right to request that for good cause, the commission decide a motion other than those described in Subsection (c)(1). All motions shall be in writing and there shall be no absolute right to oral argument, which shall only be had in the discretion of the hearing officer, as to motions to be heard by him or by her, or by the chair of the commission as to motions to be decided by the commission.
(4) Motions for the disqualification or recusal of a hearing officer are to be made to the designated hearing officer within 10 calendar days of the parties receipt of notification of the appointment of the hearing officer. If the hearing officer deems the recusal motion meritless, he or she shall provide written reasons therefor and the motion shall be automatically referred to the commission for decision at the next regularly scheduled meeting, except where the respondent judge or the office of special counsel withdraws the request for disqualification after reviewing the hearing officer’s reasons. So long as the motion is pending, all proceedings will be stayed until the commission has rendered its decision.
(5) In deciding a motion, the hearing officer shall not engage in ex parte communications with the special counsel or with the respondent judge and his or her counsel. In this regard, as to exceptions, motions, and all other matters, during the time the hearing officer is serving with regard to formal charges filed, the hearing officer shall be subject to the Code of Judicial Conduct. Retired and former judges who serve as hearing officers shall be subject to the Code of Judicial Conduct to the same extent that the Code applies to retired judges. [amended effective November 1, 2007]
(d) The conduct of hearings. The hearing officer shall set a prompt hearing date, regulate the course of the hearing, make appropriate rulings, set the time for adjourned or continued hearings and fix the time for filing proposed findings, briefs and other documents, and shall have such other authority as specified by the commission, not inconsistent with the provisions of this rule. [amended effective November 29, 2007]
The respondent judge who is the subject of the hearing, and the special counsel, shall be afforded a reasonable opportunity to present to the hearing officer written argument on issues of law and fact, including but not limited to briefs and/or proposed findings of facts and conclusions of law. The respondent judge and the special counsel may file briefs and/or proposed findings with the hearing officer at the offices of the commission no later than 30 days after their receipt of the transcript of the hearing. For good cause, the hearing officer may grant a reasonable extension or may shorten the period.
(e) Proposed findings of fact and conclusions of law. The hearing officer shall submit a report to the commission with proposed findings of fact and conclusions of law. The commission shall review the report de novo, and may on its own motion remand the case to the hearing officer for the taking of further evidence on any issue presented by the formal charge(s). No recommendation shall be made with respect to a sanction to be imposed by the commission. The hearing officer shall endeavor to submit such report: (i) no later than 30 days after receipt of the briefs and/or proposed findings of fact and conclusions of law referred to in subsection (d) of this section; or (ii) no later than 30 days after the failure of the respondent or the special counsel to file such brief and/or proposed findings of fact and conclusions of law within the time prescribed in subsection (d) of this section. A copy of the hearing officer’s report shall be sent to the respondent judge and the special counsel.
(f) Procedure to consider hearing officer’s proposed findings of fact and conclusions of law.
(1) The commission shall consider the hearing officer’s report and/or agreed statement of uncontested material facts and shall provide reasonable opportunity for the submission of briefs and oral argument by the respondent judge and the special counsel with respect to such report or agreed statement of uncontested material facts and with respect to possible sanctions. The office of special counsel shall file an original and 9 copies of any brief submitted to the commission. Thereafter, the respondent judge shall file an original and 9 copies of any reply brief submitted to the commission.
(2) The respondent judge may request an appearance before the commission to make a statement about the case, and the commission, on its own motion, may require the respondent judge to appear to answer questions about the allegations pending and/or about the hearing officer’s report or about any stipulations of fact. The commission may require any witness who appeared before the hearing officer to appear before the commission for questioning.
(g) Procedure to consider proceedings without appointment of a hearing officer.
(1) If the respondent judge and the special counsel have presented for approval a statement of uncontested material facts (as to all factual allegations of the formal charges) and such stipulation has been accepted, a motion to dispense with the services of a hearing officer shall be granted, reserving to the commission the decision whether to permit or require the respondent judge to address the commission in person. The parties may further present a stipulation as to the relevant law, or if there is a failure to agree, each side may brief such law. If the parties have presented for approval a statement of uncontested facts as to less than all of the alleged factual allegations, the motion to dispense with appointment of a hearing officer shall be made by majority vote of the commission, which may be decided at a meeting or by a telephone poll.
(2) If for any reason there is no qualified person designated to serve as hearing officer and such circumstance persists for a period of 30 days after the filing of formal charges in a particular case, the commission shall proceed to hear the case without the benefit of a hearing officer.
The proceedings before the hearing officer shall remain confidential, and such confidentiality may not be waived by the respondent judge.
A retired or former judge who serves as a hearing officer shall be entitled to remuneration for his or her services in the same manner as the court compensates retired judges. [amended effective November 1, 2007]
[enacted effective December 1, 2007] [effective date amended October 11, 2007] [amended September 30, 2009]
Amended Oct. 24, 1974, effective Jan. 1, 1975; amended and effective Sept. 18, 1975; amended and effective Oct. 20, 1978; amended and effective Feb. 3, 1983. Amended and effective Jan. 17, 1996; amended and effective Feb. 3, 1997; amended and effective Nov. 12, 1997; amended and effective July 1, 1999; amended and effective November 8, 1999; amended effective October 17, 2001; amended effective November 8, 2001; amended effective October 1, 2002; amended March 10, 2004, amended effective October 26, 2006; amended and effective August 29, 2007; amended effective January 1, 2008; amended effective June 14, 2013.