IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Notice of Hearing
Supreme Court No. 960342
Proposed Amendments to the Rules of Judicial Conduct Commission
The Judiciary Standards Committee filed proposed Amendments to the North Dakota Rules of Judicial Conduct Commission on October 31, 1996. The Judiciary Standard Committee's October 31, 1996 letter to the Supreme Court explaining the requested amendments and the Summary and Background of the proposed amendments are attached.
On October 31, 1996, the Judicial Conduct Commission also filed comments and proposed amendments to the Judiciary Standards Committee's recommendations. The Judicial Conduct Commission's October 7 and 21, 1996 letters explaining the distinctions between both proposals and the proposed amendments to the Judiciary Standards Committee's recommendations are also attached.
ORDERED, that a hearing be held on the Proposed Amendments, Monday, December 16, 1996, at 2:45 p.m., in the courtroom of the Supreme Court, at the State Capitol in Bismarck, North Dakota. Time for personal appearances will be limited. Any person wishing to comment on the proposed amendments may do so in writing prior to the hearing. Address written comments to Penny Miller, Clerk, North Dakota Supreme Court, Judicial Wing, First Floor, 600 East Boulevard Avenue, Bismarck, ND 58505-0530. Anyone wanting copies of the proposed amendments should contact the Office of the Clerk of the Supreme Court.
Dated at Bismarck, ND, November 6, 1996.
Penny Miller, Clerk
North Dakota Supreme Court
North Dakota Supreme Court
JUDICIARY STANDARDS COMMITTEE
First Floor - Judicial Wing
600 East Boulevard
Bismarck, ND 58505-0530(701) 328-2689Brian Neugebauer, Chair
PO Box 458
West Fargo, ND 58078-0458
October 31, 1996
Chief Justice Gerald W. VandeWalle
North Dakota Supreme Court
First Floor - Judicial Wing
600 East Boulevard Avenue
Bismarck, ND 58505-0530
RE: Reports Concerning Judicial Discipline Process and Judicial Performance Evaluation
Dear Chief Justice VandeWalle:
The Judiciary Standards Committee recently completed work in two assigned areas of study: 1) a review of rules governing North Dakota's judicial discipline process, and 2) a consideration of whether a judicial performance evaluation program should be reestablished. A summary of the Committee's activities and recommendations is set out below.
Proposed Amendments Concerning Judicial Discipline
In late 1995, the Judiciary Standards Committee began a review of rules governing our state's judicial discipline system in light of the recently adopted ABA Model Rules for Judicial Disciplinary Enforcement. At the same time, a subcommittee of the Judicial Conduct Commission (Judge Lawrence Leclerc, Marivern Easton, and J. Philip Johnson) was beginning a similar effort. To avoid a duplication of effort, it was agreed that a subcommittee of the Committee (Judge Debbie Kleven, Wayne Sanstead, and me) would join with the Commission subcommittee to conduct a joint review and submit a report to the full Committee and Commission.
The Joint Subcommittee on Judicial Discipline, after a number of meetings over six months, submitted its report, which recommended a series of amendments to rules and statutes governing the judicial discipline process. The general outlines of the Joint Subcommittee report are detailed in the attached Background and Summary Memorandum. Perhaps most significant of the changes included in the report was the Joint Subcommittee's recommendation that a three-member hearing panel be empowered to consider formal charges and make recommendations directly to the Supreme Court. This recommendation followed the approach taken under the ABA Model Rules. However, as explained in the Background and Summary Memorandum, the full Committee at its August 9, 1996, meeting declined to adopt this proposed change. Instead, the Committee voted unanimously to modify the Joint Subcommittee recommendation to provide for a four-member hearing panel, two members of which must be lay members, which must be unanimous in its finding of misconduct or incapacity or in its decision to dismiss. If unanimous, the panel would submit its report directly to the Supreme Court. If the panel is not unanimous, it must refer the case to the full Commission for a review on the record after which the Commission would either dismiss the case or submit a report to the Supreme Court. With this modification and additional, minor changes, the Committee voted unanimously to submit the proposed rule and statutory amendments to the Supreme Court for its consideration.
The Judicial Conduct Commission subsequently reviewed the action taken by the Committee and voted unanimously to support the three-member hearing panel approach recommended by the Joint Subcommittee and to oppose the four-member panel approach ultimately adopted by the Committee. The Committee met on October 11 to review its previous action in light of the Commission's response and also consider a letter submitted by J. Philip Johnson explaining the basis for the Commission's response. A copy of the letter is attached as an Appendix to the Committee's October 11 meeting minutes. Following discussion, Committee members voted unanimously to abide by the Committee's previous decision. Committee members were cognizant of the Commission's view that a three-member hearing panel, with recommendations directly to the Supreme Court on a majority vote, would provide a more expedited process. Committee members were also mindful of the Commission's concern that the four-member hearing panel approach would be too cumbersome because of the difficulty in gathering four members to serve and in requiring the second step of Commission review if the panel is not unanimous, thereby compromising the expedited process. However, Committee members concluded that the proposed four-member panel approach, while somewhat cumbersome is less so than the present process; has the advantage of providing a majority of the Commission when there is a unanimous finding of misconduct, incapacity, or dismissal; and provides a greater procedural safeguard for the respondent judge. Committee members were firmly of the opinion that this proposed approach is a workable compromise that contributes in a credible way to a more expedited process while protecting the due process interests of a judge subject to the disciplinary process.
The Committee, at its October 11 meeting, reaffirmed its previous decision to submit the proposed rule and statutory amendments, as modified, to the Supreme Court for its consideration. Included for your review are the following:
A. Background and Summary of Proposed Changes (Ivory).
B. Proposed Amendments to Rules Governing the Judicial Conduct Commission (Buff).
C. Draft Legislation Amending Statutes Governing the Judicial Conduct Commission (Salmon).
D. Proposed Amendments to Administrative Rule 5 - Duties of the Clerk of the Supreme Court (Green).
E. Minutes of the Committee's August 9, 1996, and October 11, 1996, Meetings (White).
Judicial Performance Evaluation
The Committee has also completed review of a task assigned to it from the 1995/97 Judicial Master Program: to consider whether to develop a voluntary, pilot judicial performance evaluation process. The Committee reviewed previous Committee work leading to the adoption of Administrative Rule 32, which has sunsetted, reviewed information describing judicial performance evaluation programs in other states, and reviewed a draft rule based on rules adopted in Arizona and Utah. Committee members reached an early conclusion that a voluntary pilot project would likely be unsuccessful, much as implementation of Administrative Rule 32 was unsuccessful.
Consideration then turned to whether a mandatory program directed at all justices and district judges should be undertaken. Committee members concluded that to develop a meaningful and effective judicial performance evaluation program would likely entail significant costs in terms of staffing, institutional support, and implementation which would outweigh any benefits gained from the program. Members emphasized that judicial self-evaluation and self-improvement are laudable goals and there is obvious merit in pursuing some kind of evaluation mechanism. But a broadly focused evaluation program was considered too costly for a small judiciary such as North Dakota's, which is not subject to retention elections. It was suggested that a more cost effective means of achieving judicial self-improvement could initially be pursued through aggressive, properly focused judicial education programs. The Committee voted unanimously at its October 11 meeting that development of a judicial performance evaluation process not be given any further consideration.
If you have any questions concerning either of the reports here submitted, please do not hesitate to contact me.
Brian Neugebauer, Chair
Judiciary Standards Committee
cc: Justices of the Supreme Court
Penny Miller, Clerk of the Supreme Court
Members, Judicial Conduct Commission
BACKGROUND AND SUMMARY OF PROPOSED CHANGESIntroduction
Subcommittee Study. In late 1995, the Judiciary Standards Committee was requested to review the recently adopted ABA Model Rules on Judicial Disciplinary Enforcement to determine whether changes should be made to North Dakota rules governing the operation of the Judicial Conduct Commission. At the same time, a subcommittee of the Judicial Conduct Commission, comprised of Judge Lawrence A. Leclerc, J. Philip Johnson, and Marivern Easton, was also conducting a review of the Model Rules and the operation of North Dakota's judicial discipline system. It was subsequently agreed that to avoid a duplication of effort, a subcommittee of the Judiciary Standards Committee, comprised of Brian Neugebauer, Judge Debbie Kleven, and Wayne Sanstead would join the Commission subcommittee to undertake a joint review of the Model Rules and North Dakota's rules. The Commission's subcommittee had previously identified several issues for review. These included screening and disposition of frivolous complaints; confidentiality; disability; due process at the formal stage; immunity for Commission members and staff; the authority, responsibilities, and duties of staff counsel; and assessment of costs. Staff counsel for the Judicial Conduct Commission had also, in mid-1995, identified certain areas of concern for consideration by the Commission. These included issues concerning the absence of any obligation under present rules of the judge to respond to formal charges, the overlap in the Commission of investigative and adjudicative functions, and the lack of a procedure for review of private censures. There was also a generally expressed concern about the lack of procedural detail in current rules.
Following a six month review of the ABA Model Rules and North Dakota rules, the Joint Subcommittee on Judicial Discipline unanimously recommended to the full Committee numerous amendments to rules governing the operation of the Judicial Conduct Commission, several amendments to statutes governing the operation of the Commission, and amendments to the administrative rule governing the duties of the clerk of the supreme court. The Joint Subcommittee's report was also presented to the Commission for review. In reviewing the ABA Model Rules, the Joint Subcommittee concluded that while some model rule provisions could appropriately be incorporated in North Dakota's rules to address certain procedural and substantive concerns, the general model rule approach was too complex and burdensome in its multi-layered approach to judicial discipline. Consequently, the proposed changes include several model rule provisions as well as adaptations of certain model rules to reflect the unique needs and requirements of North Dakota's judicial disciplinary system. There were three general proposed changes in process and procedure that formed the core of the Joint Subcommittee's recommendations. First, all complaints would be filed with disciplinary counsel. A corollary of this change is set out in the proposed amendments to Administrative Rule 5, which would remove the requirement that the clerk of the Supreme Court serve as secretary of the Judicial Conduct Commission. Counsel would be given the authority to screen all complaints alleging judicial misconduct and could summarily dismiss the complaint if the allegation would not constitute misconduct if it were true. A method for review by the Commission of proposed dismissals would be provided. Second, the full Commission would dispose of complaints at the informal stage, based upon disciplinary counsel's recommendation. Last, a three-member hearing panel of the Commission would have been responsible for conducting a hearing on formal charges and recommending a sanction directly to the Supreme Court.
Committee Review. The Judiciary Standards Committee reviewed the Joint Subcommittee report at its August 9, 1996, meeting. With one major exception, the Committee adopted the report with only minor modifications. The Committee declined to adopt the Joint Subcommittee's recommendation that a three-member hearing panel hear formal charges and make recommendations to the Supreme Court. Committee members were concerned that action by a three-member panel, when coupled with only a majority agreement requirement, could result in recommendations forwarded to the Supreme Court with only two members of the full Commission in accord. The Committee substituted a process in which a four-member hearing panel, comprised of at least two lay members, would conduct formal hearings and make recommendations to the Supreme Court. The four-member panel would be required to be unanimous in its finding of misconduct or incapacity or in its decision to dismiss. Lacking unanimity, the panel would be required to refer the matter to the full Commission for a review on the record. The Commission would then either dismiss the case or forward a report and recommended sanction to the Supreme Court.
The Judicial Conduct Commission, at a September 24, 1996, meeting reviewed the changes made by the Judiciary Standards Committee and voted unanimously to support the three-member hearing panel approach recommended by the Joint Subcommittee and to oppose the four-member hearing panel process adopted by the Committee. The Committee met on October 11 to consider the Commission's objections and voted unanimously to reaffirm its earlier action.
The following summary provides a brief review, by subject matter, of each new rule , amendments to existing rules, and proposed legislation as approved by the Judiciary Standards Committee.
There is no definitional section in the present North Dakota rules. The proposed terminology section, based upon model rule provisions, sets out definitions for key terms used throughout the rules. The most notable new terms are: "deferred discipline agreement", which is an informal discipline that can be imposed by the Commission; "incapacity" and "incapacity inactive status", which are a condition and status premised upon a finding that a judge suffers from a mental or physical condition that requires retirement or removal; and "admonition", which would replace the current private censure as a non-public sanction that could be imposed by the Commission.
Organization of the Commission
New Rule 3 (pp. 3-5) identifies the organization and authority of the Judicial Conduct Commission. The rule reflects Commission composition as directed by statute and identifies generally the authority of the Commission, which can be delegated to disciplinary counsel. The rule also identifies the authority of the Commission chair to appoint a four-member hearing panel to conduct hearings on formal charges and make findings and recommendations to the Supreme Court. The hearing panel would also have the authority to refer cases under certain circumstances to the Commission for a review on the record.
New Rule 4 (pp. 5-6) is based upon the model rule provision and generally sets out the powers and duties of disciplinary counsel, which include receiving and screening complaints, conducting investigations, making recommendations to the Commission, filing and prosecuting formal charges, maintaining permanent records of the operation of disciplinary counsel's office, compiling statistics, preparing the Commission's budget, and performing other duties at the direction of the Commission.
New Rule 6 (pp. 7-11), formerly Rule 4, establishes the confidentiality of disciplinary proceedings and proposed changes are based upon the model rules. The proposed change provides that all disciplinary proceedings are confidential before the filing and service of formal charges, after which time all proceedings are public except incapacity proceedings. Under present Rule 4, all proceedings of the Judicial Conduct Commission up to the formal hearing are confidential. The proposed change provides exceptions to confidentiality which permit the Commission to disclose information when it is necessary to protect the public or the administration of justice or when a written waiver has been obtained from the judge. The proposed change also provides that disciplinary counsel's work product is confidential. Proposed Section E (p. 10) provides for the expungement of records relating to dismissed complaints. This rule tracks Rule 6.1C of North Dakota's lawyer discipline rules.
Immunity from Civil Suits
New Rule 7 (pp. 11-12), formerly Rule 5, is based upon the model rules and in large part restates the current rule. However, the proposed change extends immunity from civil suits to members of the Commission, counsel, and staff for conduct in the course of official duties.
New Rule 8 (p. 12) is based upon the model rule provision and sets out the sanctions that may be imposed by the Supreme Court or the Commission.
Burden of Proof
New Rule 9 (p. 13) is based upon the model rule provision and formalizes the burden of proof governing present disciplinary proceedings. The proposal provides that charges of misconduct and grounds for transfer to and from incapacity inactive status must be established by clear and convincing evidence.
Filing of Complaints, Screening, and Investigation
New Rule 10 (pp. 13-19), formerly Rule 6, is an adaptation of the model rule approach but does not include the more elaborate separation of investigative and adjudicative functions suggested by the model rule, which was considered too burdensome and costly to implement. Section A requires that all complaints be filed with disciplinary counsel, which would eliminate participation by the clerk of the supreme court in the judicial disciplinary system. Counsel would evaluate all information alleging judicial misconduct or incapacity and could summarily dismiss the complaint if the information would not constitute misconduct or incapacity if it were true. Counsel would periodically submit a list of all complaints considered subject to summary dismissal to the Commission. Any Commission member could request that the Commission further consider a particular complaint. If the information evaluated by disciplinary counsel raises allegations that would constitute judicial misconduct or incapacity if true, counsel must conduct an investigation. Section B of new Rule 10 sets out the procedures that govern the investigative process, which require notice to the judge of the allegations being investigated, the judge's duty to respond when requested by disciplinary counsel, the judge's opportunity to meet with disciplinary counsel, and the name of the complainant. Disciplinary counsel is also authorized to issue subpoenas. After concluding the investigation, disciplinary counsel may recommend to the Commission a variety of dispositions including dismissal, admonition, and the filing of formal charges. The Commission may adopt, reject, or modify the recommendations or it may direct that disciplinary counsel conduct further investigation. If the Commission finds probable cause to believe the judge committed misconduct, the Commission may direct the filing of formal charges or may impose, with the judge's consent, an admonition or deferred discipline agreement. If the judge does not consent, the Commission may direct either the filing of formal charges or dismissal of the complaint.
New Rule 11 (p. 19), formerly Rule 8, requires that disciplinary counsel file formal charges with the chair of the hearing panel appointed by the Commission chair. Formal charges must give fair and adequate notice of the nature of the alleged misconduct or incapacity. The rule further describes the manner of service upon the respondent. The new rule, which is based upon the model rule provision, restates in large part present Rule 8.
New Rule 12 (pp. 20-21), formerly Rule 9, is amended to change the time within which the judge files an answer to formal charges and also departs from the present rule in requiring the judge to file an answer. Proposed amendments would also require that the answer be filed with the chair of the hearing panel.
Failure to Answer or Appear
New Rule 13 (p. 21), which is taken from the model rules, would provide that a judge's failure to answer the formal charges constitutes an admission and failure to appear when ordered by a hearing panel or the supreme court would be deemed an admission of the factual allegations that are the subject of the appearance. Under current rules, there is no consequence if a judge fails to answer or appear.
Discipline by Consent
New Rule 14 (pp. 21-23), which is taken from the model rules, would replace the cursory reference in present Rule 28 to the judge's ability to consent to judicial discipline. The proposal permits the judge to admit, after the filing of the formal charges, to any or all charges in exchange for a stated sanction. The agreement must be submitted to the hearing panel, which may reject the agreement or submit the agreement to the Supreme Court for approval. If the discipline is rejected, the admission is withdrawn and cannot be used against the judge in any proceeding. The new rule also sets out the contents of the affidavit of consent.
New Rule 15 (pp. 23-25), which is taken from the model rules, establishes procedures governing discovery during the disciplinary process. Section A requires disciplinary counsel and the respondent judge to exchange within a certain timeframe names and addresses of all persons known to have knowledge of the relevant facts. Disciplinary counsel or the respondent may withhold certain information with permission of the hearing panel chair. Disciplinary counsel and respondent are permitted to take depositions only of witnesses called at the hearing and other witnesses unavailable to testify. Depositions of other persons are permitted only with permission of the hearing panel chair and for good cause shown. Disciplinary counsel must provide the respondent judge with exculpatory evidence (Section C); both parties have a continuing duty to supplement information required to be exchanged (Section D) and all discovery must be completed within 90 days of filing the answer (Section E). The hearing panel may preclude either party from calling a witness at the hearing if the party has failed to properly disclose identifying information (Section F).
New Rule 16 (pp. 25-29), formerly Rule 11, is taken in large part from the model rules and establishes the hearing panel's responsibilities concerning the hearing on formal charges. Following the hearing, the hearing panel, if unanimous, may either dismiss the case or recommend a sanction to the supreme court. The proposed rule departs from the model rules in requiring that the panel be unanimous in its finding of misconduct or incapacity or in its decision to dismiss. If the panel is not unanimous, the matter must be referred to the Commission for a review on the record. The Commission must then either dismiss the case or submit a report to the Supreme Court. The report must be filed within 60 days of the panel's hearing or the Commission's review and must be served upon the respondent judge and disciplinary counsel. Within 20 days of receipt of the report, the respondent judge and disciplinary counsel may file with the supreme court a notice of exceptions to the findings, conclusions, or recommendations for sanction filed by the hearing panel or Commission.
Supreme Court Review
New Rule 23 (pp. 35-37) is taken from the model rules and replaces current Rules 24 and 25. The new rule allows disciplinary counsel and the respondent judge to file briefs limited to exceptions to the hearing panel's report within 50 days after service of the report. The supreme court may remand the case to the hearing panel if an expansion of the record or additional findings is desired and the supreme court may order additional briefs or oral arguments. The Supreme Court must file a written decision dismissing the case or imposing a sanction. The court may accept, reject, or modify the findings and conclusions of the hearing panel. The court may also assess costs against the respondent judge if it finds that misconduct has been occurred.
New Rule 25 (pp. 38-44) is taken from the model rules and establishes procedures for resolving allegations of mental or physical incapacity. Such procedures are not addressed in current rules. Section A describes the initiation of the incapacity proceeding. Section B requires that incapacity proceedings be conducted in the same manner as disciplinary proceedings, with certain exceptions. Section C requires the supreme court to immediately transfer the judge to both lawyer disability inactive and judicial incapacity inactive status if the judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order. Section D describes procedures to be followed if the respondent judge alleges an inability to properly defend in a disciplinary proceeding. Section E requires that the hearing panel designate a qualified expert to examine the judge before the hearing. After receipt of the examination report, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and an order. This "stipulated disposition" must then be submitted to the hearing panel for recommendation to the supreme court. The supreme court may accept or reject the stipulated disposition. Section F describes the manner in which a judge may be reinstated from incapacity inactive status.
Masters and Other Conforming Amendments
The Joint Subcommittee concluded that it was no longer necessary to provide for the referral of judicial disciplinary proceedings to a master. Consequently, all provisions relating to masters would be deleted. Several current rules are also amended to reflect the recommendation that a hearing panel, rather than the full commission, would conduct the hearing and make recommendations concerning formal charges. Rules affected, as renumbered, are Rules 17, 18, 19, 20, 21, and 22.
PROPOSED STATUTORY AMENDMENTS
The Committee recommends amendments to North Dakota Century Code Chapter 27-23, which governs the creation, composition, duties, and operation of the Judicial Conduct Commission. Proposed amendments to Section 27-23-01 would add a definition of "hearing panel", would add judicial referees to the definition of "judge", and would delete the definition of "master". Proposed amendments to Section 27-23-02, in addition to essentially technical house-cleaning amendments, would authorize the Commission chair to appoint a hearing panel to conduct hearings concerning discipline, removal, retirement, or transfer to incapacity inactive status. Proposed amendments to Section 27-23-03, subsection 3, would establish the authority of the hearing panel, in addition to the Commission, to make recommendations to the supreme court. The proposed amendments also identify the Commission's authority to impose a private discipline for minor misconduct and to direct disposition of allegations of misconduct in other manners considered appropriate. Proposed amendments to Section 27-23-03, subsection 9, would provide that an act of the Commission or hearing panel must be concurred in by at least a majority of members to be valid. Proposed amendments to Section 27-23-06 include the hearing panel and disciplinary counsel in the delineation of general powers formerly confined to the Commission or masters. Proposed amendments to Section 27-23-08 replace references to "masters" with references to "hearing panel" to follow the recommended deletion of master provisions in the rules. Proposed amendments to Section 27-23-09 include the hearing panel and disciplinary counsel with the Commission as having authority to order depositions.
PROPOSED ADMINISTRATIVE RULE AMENDMENT
The Committee also recommends an amendment to Administrative Rule 5, which identifies the duties and responsibilities of the clerk of the supreme court. The proposed amendment to Section III would remove from the rule the requirement that the clerk of the supreme court serve as secretary of the Judicial Conduct Commission.
RULES OF THE JUDICIAL CONDUCT COMMISSION
To promote effective disciplinary enforcement in this state and among jurisdictions, the uniform terminology set forth below is used.
Complaint: Information in any form from any source received by the commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, disciplinary counsel's written statement of the allegations constitutes the complaint.
Deferred Discipline Agreement: A confidential agreement between the judge and the commission for the judge to undergo treatment, participate in education programs, or take other corrective action. It is only available as a response to misconduct that is minor and can be addressed through treatment or a rehabilitation program. A deferred discipline agreement can only be entered into before the filing and service of formal charges.
Disciplinary Counsel: The lawyer in charge of receiving, screening and investigating complaints, prosecuting formal charges, and performing other duties assigned by the commission. See Rule 4.
Formal Charges: The document that charges the judge with specific acts of misconduct or with a specific incapacity.
Hearing Panel: The panel of the commission that conducts hearings on formal charges. See Rule 3.
Incapacity: A mental or physical condition that adversely affects a judge's ability to perform judicial functions. Incapacity is distinguished from a disability that does not adversely affect a judge's performance of judicial functions.
Incapacity Inactive Status: Non-disciplinary involuntary retirement or removal of a judge from judicial office, with or without pay or retirement benefits, because of mental or physical inability to perform judicial functions.
Admonition: A non-public sanction imposed on a judge by the commission with the consent of the judge. See Rule 8F. A private admonition cannot be imposed after the filing and service of formal charges. Only in cases of minor misconduct, when there is little or no injury to the public, the legal system, or the profession, should a private admonition be imposed.
RULE 1. APPLICATION, GENERAL
These rules are established pursuant to Chapter 27-23, N.D.C.C., and apply to all judges in the State of North Dakota.
RULE 2. APPLICATION OF CODE OF JUDICIAL CONDUCT
Canons 1 through 5, along with the supporting commentary of the Code of Judicial Conduct as approved by the North Dakota Supreme Court effective on January 1, 1994,
are hereby adopted as a rule redefining define the standard of conduct which should be observed, together with the laws of North Dakota and of the United States, by all judges of this state.
RULE 3. ORGANIZATION AND AUTHORITY OF THE COMMISSION
A. Composition, Panels, and Meetings. The commission consists of seven members as provided under Section 27-23-02, NDCC. The full commission shall meet periodically as determined by the commission to direct disposition of complaints under Rule 10D, conduct reviews on the record under Rule 16E, and consider administrative matters. All acts of the commission, except those involving administrative matters, must be concurred in by a majority of its members. Meetings of the commission other than periodic meetings may be called by the chair upon the chair's own motion and shall be called by the chair upon the written request of three members of the commission.
B. Delegation of Duty and Authority. The commission may delegate to disciplinary counsel the duty and authority to:
(1) maintain the commission's records;
(2) maintain statistics concerning the operation of the commission and make them available to the commission and the supreme court;
(3) prepare the commission's budget for its approval and administer the funds;
(4) notify the appropriate appointing authority of vacancies on the commission;
(5) prepare an annual report of the commission's activities for presentation to the supreme court and the public; and
(6) inform the public of the existence and operation of the judicial discipline system, including the commission's address and telephone number and the disposition of each matter in which public discipline is imposed.
C. Hearing Panel - Duty and Authority. If the commission directs the filing of formal charges, the commission chair shall appoint a four member hearing panel consisting of at least two citizen members of the commission. The hearing panel has the duty and authority to rule on prehearing motions, conduct hearings on formal charges and make findings, conclusions, and recommendations to the supreme court for sanctions or dismiss the case under Rule 16D or refer a matter to the commission for a review on the record under Rule 16E.
RULE 4. DISCIPLINARY COUNSEL
A. Appointment. The commission shall appoint disciplinary counsel. Full-time disciplinary counsel shall not otherwise engage in the practice of law or serve in a judicial capacity.
B. Powers and Duties. Disciplinary counsel has the authority and duty to:
(1) receive and screen complaints, refer complaints to other agencies when appropriate, conduct investigations, notify complainants about the status and disposition of their complaints, make recommendations to the commission on the disposition of complaints after investigation, file formal charges when directed to do so by the commission, prosecute formal charges and file notices of exceptions to the findings, conclusions, recommendations for sanctions or orders of dismissal of hearing panels;
(2) maintain permanent records of the operations of disciplinary counsel's office, including receipt of complaints, screening, investigation and filing of formal charges in judicial discipline and incapacity matters;
(3) compile statistics to aid in the administration of the system, including a log of all complaints received, investigative files and statistical summaries of docket processing, and case dispositions;
(4) prepare the commission's budget for submission to the commission and administer the funds;
(5) employ and supervise other members of disciplinary counsel's staff;
(6) employ private investigators or experts as necessary to investigate and process matters before the commission, hearing panel, and the supreme court; and
(7) perform other duties at the direction of the commission.
3 5. INTERESTED PARTY
A judge who is a member of the Commission or of the Supreme Court may not participate as such in any proceedings involving
histhe judge's own discipline, censure, removal, or retirement. In proceedings involving a Justice of the Supreme Court, the Supreme Court shall appoint in his the justice's place the district judge who is senior in years of service as a district judge. In proceedings involving a judge who is a member of the Commission, the chairman chair or presiding officer of the state districtjudges association of said judge shall appoint another of its members to serve in his the judge's place in that proceeding.
4 6. CONFIDENTIALITY OF PROCEEDINGS -
EXPUNGEMENT OF RECORDS
(1) Before the filing and service of formal charges, all proceedings are confidential.
(2) After the filing and service of formal charges, all proceedings are public except incapacity proceedings as provided in Rule 25.
(1) Before the filing and service of formal charges, all information relating to a complaint that has not been dismissed must be held confidential by the commission and disciplinary counsel and their staffs, except that the commission may disclose information:
(a) when the commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice; or
(b) upon waiver in writing by the judge.
(2) All information relating to a complaint that has been dismissed without formal charges being filed must be held confidential by the commission and disciplinary counsel and their staffs.
(3) Disciplinary counsel's work product, commission deliberations and records of the commission's deliberations shall not be disclosed.
(a) All proceedings of the Judicial Conduct Commission prior to the formal hearings held pursuant to Rules 10 and 11 of these rules shall be closed. Formal hearings held pursuant to Rules 10 and 11 are open unless for good cause shown upon the request of the complainant, upon the request of the respondent judge or upon motion of the Commission all, or part, of the hearing is ordered closed by the Commission. (b) All papers, files and records of the Judicial Conduct Commission made part of the record of a formal hearing held pursuant to Rules 10 and 11 of these rules, shall be public records open and accessible for inspection during reasonable office hours unless the hearing for good cause is closed by the Commission in which event the papers, files and records shall be confidential until the record is filed by the Commission in the Supreme Court.
(c) If a judge is publicly charged in proceedings before the Commission resulting in substantial unfairness to him the judge, the Commission may, at the request of the judge involved, issue a short statement of clarification or correction.
If a judge is publicly associated with having engaged in reprehensible conduct or having committed a violation of the Code of Judicial Conduct, and after
a preliminary an investigation or a formal hearing it is determined there is no basis for further proceedings or for a recommendation of discipline, the Commission may issue a short explanatory statement.
If a formal hearing has been ordered in a proceeding in which the subject matter is generally known to the public, in which there is broad public interest, and in which confidence in the administration of justice is threatened due to lack of information concerning the status of the proceeding and requirements of due process, the Commission may issue one or more short announcements confirming the hearing, clarifying the procedural aspects, and defending the right of a judge to a fair hearing.
(d) Every witness in every proceeding hereunder appearing at the instance of a master or the Commission a hearing panel, or for the judge, shall testify under oath. If the Commission or the master finds cause to believe that any witness under oath has willfully and intentionally testified falsely, the Commission may direct the chairman or one of its members or agents to report such findings and the details leading thereto, including any transcript thereof, to the state's attorney of the county where such act occurred for action on a charge of perjury as he or she deems necessary or advisable. In any subsequent prosecution for perjury based thereon, the proceedings before the Commission relevant thereto shall lose their confidentiality under this rule.
All notices, papers and pleadings delivered or mailed to a judge pursuant to these rules
shall must be enclosed in a securely-sealed envelope marked "confidential," except in cases where personal service is required.
E. Disciplinary Counsel shall expunge records relating to dismissed complaints as follows:
(1) Destruction Schedule. All records or other evidence of the existence of a dismissed complaint must be destroyed three years after the dismissal.
(2) Retention of Records. Upon application to the commission by counsel, for good cause shown and with notice to the judge and the opportunity to be heard, records that should otherwise be expunged under this rule may be retained for additional time not exceeding three years as the commission directs. Counsel may, for good cause shown and with notice to the judge and opportunity to be heard, seek a further extension of the period for which retention of the records is authorized whenever a previous application has been granted for the maximum period of three years permitted under this subsection.
5 7. DEFAMATORY MATERIAL IMMUNITY FROM CIVIL SUITS Statements made in papers filed with, and testimony given before, the Commission or the master appointed by the Supreme Court pursuant to Rule 10 are privileged in any action for defamation and continue to be privileged upon a filing of the matter with the Supreme Court pursuant to Rule 23.
Communications to the commission, counsel, or their staffs relating to misconduct or incapacity and testimony given in the proceedings are absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness. Members of the commission, counsel, and staff are absolutely immune from civil suit for all conduct in the course of their official duties.
RULE 8. SANCTIONS IMPOSED; DEFERRED DISCIPLINE AGREEMENT
Sanctions. These sanctions may be imposed upon a respondent who has committed misconduct:
A. removal or retirement by the supreme court;
B. suspension by the supreme court;
C. imposition by the supreme court of limitations on the performance of judicial duties;
D. imposition of lawyer discipline by the supreme court;
E. censure by the supreme court;
F. admonition by the commission with the consent of the judge, provided that an admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed, pursuant to Rule 10D(1); or
G. deferred discipline agreement.
RULE 9. BURDEN OF PROOF
Charges of misconduct and grounds for transfer to and from incapacity inactive status must be established by clear and convincing evidence. The burden of proof in proceedings seeking transfer from incapacity inactive status is on the judge.
6 10. PRELIMINARY FILING OF COMPLAINTS, SCREENING,
A. Filing of Complaints and Screening. All complaints except those upon motion by the commission or initiated by disciplinary counsel must be in writing, signed by the complainant, and filed with counsel. If there is no written complaint from another person, counsel's written statement of the allegations constitutes the complaint. Counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges judicial misconduct or incapacity. If counsel concludes the information would not constitute misconduct or incapacity if it was true, the complaint may be summarily dismissed. At least every 30 days, counsel shall submit to the commission a list of all complaints considered subject to summary dismissal. The list must include a summary of reasons for each dismissal. Upon review of the reported complaints, any commission member may, within 10 days of the date the list was mailed, request that the commission further consider a particular complaint. If the commission concludes that summary dismissal of a particular complaint may be inappropriate, the commission shall direct that counsel conduct further investigation. Counsel shall issue a letter of summary dismissal if a request for further consideration is not received within 10 days of the date the list of complaints was mailed or if the commission, following further consideration, notifies counsel that further investigation is not required and summary dismissal is appropriate. If the information evaluated by counsel raises allegations that would constitute judicial misconduct or incapacity if true, counsel shall conduct an investigation.
(1) Disciplinary counsel may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints.
(2) If disciplinary counsel believes there is evidence supporting the allegations against a judge, counsel shall give the following notice to the judge:
(a) a specific statement of the allegations being investigated and the canons allegedly violated, with the provision that the investigation can be expanded if appropriate;
(b) the judge's duty to respond under Section B(3);
(c) the judge's opportunity to meet with disciplinary counsel under Section B(4); and
(d) the name of the complainant.
(3) Disciplinary counsel may request that the judge file a written response within 20 days after service of the notice under Section B(2).
(4) Before the commission determines its disposition of the complaint under Section D, either disciplinary counsel or the judge may request an appearance by the judge before disciplinary counsel to respond to questions. The appearance must be on the record. If disciplinary counsel requests the judge's appearance, disciplinary counsel must give the judge 20 days' notice and the testimony must be sworn.
(5) Disciplinary counsel is authorized to issue subpoenas pursuant to Rule 19 and shall conduct all investigations.
D. Disposition After Investigation.
(1) Upon the conclusion of an investigation, disciplinary counsel may recommend to the commission:
(b) admonition or deferred discipline agreement;
(c) the filing of formal charges;
(d) the filing of a petition for transfer to incapacity inactive status;
(2) The commission may adopt, reject or modify the recommendations of disciplinary counsel or direct that counsel conduct further investigation. If the commission finds misconduct for which the imposition of discipline is not warranted it may dismiss. If the commission finds that there is probable cause to believe the judge committed misconduct,
(a) it may propose an admonition or deferred discipline agreement to the respondent and if the respondent consents, it shall admonish the respondent or implement the deferred disciplinary agreement; in addition, it may assess costs against the respondent as a condition of the admonition or deferred disciplinary agreement;
(b) if the respondent does not consent to the admonishment or the deferred discipline, the commission may direct that disciplinary counsel either file formal charges or dismiss the complaint; or
(c) it may direct that disciplinary counsel file formal charges.
E. Immunity from Criminal Prosecution. Whenever a witness invokes the privilege against self-incrimination as a basis for refusing to answer a question or produce other evidence that may be relevant to a discipline or incapacity proceeding, disciplinary counsel may apply, with the approval of the attorney general, to the district court for a grant of immunity from criminal prosecution and shall give notice of the application to the state's attorney. If the court grants the order, the witness may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but no testimony or other evidence compelled under such an order may be used against the witness in any criminal case. The witness may be prosecuted for perjury or contempt committed in answering or failing to answer in accordance with the order.
(a) The Commission, upon receiving a written statement of complaint, not obviously unfounded or frivolous, alleging facts indicating that censure, removal, retirement, suspension, or other disciplinary action should be considered, according to Chapter 27-23, N.D.C.C., shall make a preliminary investigation to determine whether formal proceedings should be instituted and a hearing held. The Commission on its own motion and without receiving a written statement of complaint may make inquiry and a preliminary investigation with respect to whether a judge is guilty of misconduct in office or is physically or mentally disabled. Upon request of the Chief Justice of the Supreme Court, the Commission shall make a preliminary investigation of the conduct or physical or mental condition of the judge. (b) The judge who is the subject of an investigation shall be notified of the investigation, the nature of the charge, and the name of the person making the written statement of 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 matters as he may choose. The notice shall be given by prepaid certified or registered mail addressed to the judge at his chambers or at his last known address. (c) If the preliminary investigation does not disclose sufficient cause to warrant institution of formal proceedings, the Commission may: 1. terminate its investigation and the judge and the complainant shall be so notified; or 2. privately censure the judge. RULE 7. RESPONSE BY JUDGE A judge within the time prescribed by the Commission shall respond to the merits of a letter from the Commission sent either before or during a preliminary investigation.
8 11. NOTICE OF FORMAL PROCEEDINGS CHARGES
The formal charges must give fair and adequate notice of the nature of the alleged misconduct or incapacity. Disciplinary counsel shall file the formal charges with the chair of the hearing panel appointed by the commission chair. Disciplinary counsel shall cause a copy of the formal charges to be personally served upon the respondent or respondent's counsel and shall file proof of service with the commission. If it appears to counsel that, after reasonable effort for a period of 10 days, personal service cannot be made, service may be made upon the judge by certified mail at the judge's chambers or last known address.
(a) After the preliminary investigation has been completed, if the Commission concludes that formal proceedings should be instituted, the Commission without delay shall issue a written notice to the judge advising him of the institution of formal proceedings to inquire into the charges against him. (b) The notice shall be served personally upon the judge by a person designated by the chairman of the Commission, but if it appears to the chairman of the Commission upon affidavit that, after reasonable effort for a period of 10 days, personal service could not be made, service may be made upon the judge by certified or registered mail with copies of the notice addressed to the judge at his chambers or at his last known address. (c) The notice shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which those charges are based, and shall advise the judge of his right to file a written answer to the charges against him within 15 days after service of the notice upon him.
9 12. ANSWER
15 20 days after service of the notice of formal proceedings charges, the judge may shall file with the Commissionchair of the hearing panel a responsive written answer and serve a copy on disciplinary counsel. The notice of formal proceedings and answer shall constitute the pleadings and no further pleadings shall may be filed, except amendments, and no motion challenging the adequacy of the pleadings shall be is allowed. The raising of a mental or physical condition as a defense constitutes a waiver of medical privilege under Rule 25D(4).
RULE 13. FAILURE TO ANSWER/FAILURE TO APPEAR
A. Failure to Answer. Failure to answer the formal charges constitutes an admission of the factual allegations.
B. Failure to Appear. If the respondent fails to appear when specifically so ordered by the hearing panel or the Supreme Court, the respondent is deemed to have admitted the factual allegations which were to be the subject of the appearance and to have conceded the merits of any motion or recommendations to be considered at the appearance. Absent good cause, the hearing panel or Supreme Court shall not continue or delay proceedings because of the respondent's failure to appear.
RULE 14. DISCIPLINE BY CONSENT
A. Approval. At any time after the filing of formal charges and before final disposition, the respondent may agree with disciplinary counsel that the respondent shall admit to any or all of the formal charges in exchange for a stated sanction. The agreement must be submitted to the hearing panel of the commission assigned to the case, which shall either:
(1) reject the agreement; or
(2) submit the agreement to the Supreme Court for approval.
B. Rejection of Sanction. If the stated sanction is rejected by the hearing panel or the Supreme Court, the admission must be withdrawn and cannot be used against the respondent in any proceeding.
C. Affidavit of Consent. A respondent who consents to a stated sanction shall sign an affidavit stating that:
(1) the respondent consents to the sanction;
(2) the consent is freely and voluntarily rendered;
(3) there is presently pending a proceeding involving allegations of misconduct; and
(4) the facts set forth in the affidavit are true.
D. Order of Discipline. The hearing panel shall file the affidavit with the Supreme Court. The affidavit is confidential until it is accepted by the Supreme Court. The Supreme Court shall either reject the agreement or enter the order disciplining the respondent. The final order of discipline must be based upon the formal charges and the conditional admission.
RULE 15. DISCOVERY
A. Witnesses. Within 20 days of the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons known to have knowledge of the relevant facts. Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair's designee, who can authorize withholding of the information only for good cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the judge. The chair's review of the withholding request is to be in camera, but disciplinary counsel must advise respondent of the request without disclosing the subject of the request. The hearing panel shall set a date for the exchange of the names and addresses of all witnesses the parties intend to call at the hearing.
B. Other Evidence. Disciplinary counsel and respondent shall exchange:
(1) non-privileged evidence relevant to the formal charges, documents to be presented at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing; and
(2) other material only upon good cause shown to the chair of the hearing panel.
C. Exculpatory Evidence. Disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges.
D. Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this Rule.
E. Completion of Discovery. All discovery must be completed within 90 days of filing of the answer.
F. Failure to Disclose. The hearing panel may preclude either party from calling a witness at the hearing if the party has not provided the opposing party with the witness's name and address, any statements taken from the witness, or summaries of any interviews with the witness.
G. Resolution of Disputes. Disputes concerning discovery must be determined by the hearing panel before whom the matter is pending. The decisions of the hearing panel may not be appealed before entry of the final order.
H. Civil Rules Not Applicable. Proceedings under these Rules are not subject to the Rules of Civil Procedure regarding discovery except those rules relating to depositions and subpoenas.
RULE 10. SETTING FOR HEARING BEFORE COMMISSION Upon the filing of an answer or upon expiration of the time for its filing, the Commission shall order a hearing to be held before it or one or more of its members concerning the censure, removal, retirement, suspension, or other disciplinary action against the judge, or the Commission may request the Supreme Court to appoint a master or masters to hear and take evidence in the matter and to report thereon to the Commission. The Commission shall set a time and a place for hearing and shall give notice of the hearing by mail to the judge at least 20 days before the date set.
11 16. HEARING (a) At the time and place set for hearing, the Commission, or the master if the hearing is before a master, shall proceed with the hearing, whether or not the judge has filed an answer or appears at the hearing. The counsel appointed by the Commission shall present the case in support of the charges in the notice of formal proceedings. (b) The failure of the judge to answer or to appear at the hearing may not be taken as evidence of the truth of the facts alleged to constitute grounds for censure, removal, retirement, suspension, or other disciplinary action. The failure of the judge to testify in his own behalf or to submit to any medical examination requested by the Commission or the masters may be considered by the Commission, unless it appears that the failure was due to circumstances beyond his control. (c) The proceedings at the hearing shall be reported by a qualified court reporter.
A. Scheduling. Upon receipt of the respondent's answer or upon expiration of the time to answer, the hearing panel of the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time, and place of the hearing.
B. Hearing Panel. The hearing must be conducted by a hearing panel of the commission.
C. Conduct of Hearing.
(1) All testimony must be under oath.
(2) Disciplinary counsel shall present evidence on formal charges.
(3) Disciplinary counsel may call the respondent as a witness.
(4) Both parties may present evidence and produce and cross-examine witnesses.
(5) The hearing must be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, a member of the hearing panel or the Supreme Court, a transcript of the hearing must be produced promptly and provided to the respondent without cost.
(6) Disciplinary counsel and the respondent may submit proposed findings, conclusions, and recommendations for sanction or order of dismissal to the hearing panel.
D. Dismissal, Recommendation for Sanction, or Referral. The hearing panel shall dismiss the case, recommend a sanction to the supreme court, or refer the case under Section E to the commission. The panel must be unanimous in its finding of misconduct or incapacity or in its decision to dismiss. If the panel finds misconduct, it may recommend a sanction by unanimous agreement or one or more members may submit a separate recommendation.
E. Referral to Commission. If the hearing panel is not unanimous in its finding of misconduct or incapacity or in its decision to dismiss, the panel shall refer the case to the commission. The panel shall notify the respondent of the referral. Upon receipt of the record of the proceeding before the panel, the commission shall conduct a full review on the record and shall dismiss the case or submit a report under Section F.
F. Submission of the Report. Within 60 days after the hearing, the filing of the transcript if one was requested, or a review on the record by the commission, the hearing panel or commission shall file with the Supreme Court the record of the proceeding and a report setting forth findings of fact, conclusions of law, any minority opinions, and any recommendation for sanction. The hearing panel or commission shall at the same time serve the report upon the respondent and disciplinary counsel.
G. Notice of Exceptions. Within 20 days of receipt of the report from the hearing panel or commission, the respondent and disciplinary counsel may file with the Supreme Court notice of exceptions to the findings, conclusions, or recommendations for sanction of the panel or commission. The failure to file notice of exceptions constitutes acceptance of the findings of fact, conclusions of law, and recommendation for sanction.
12 17. EVIDENCE
At a hearing before
the Commission or master a hearing panel, the admissibility of evidence shall must be determined, insofar as circumstances permit, in accordance with the Rules of Civil Procedure Evidence, and oral evidence shall must be taken only on oath or affirmation.
13 18. PROCEDURAL RIGHTS OF JUDGE
APPOINTMENT OF GUARDIAN AD LITEM
(a) In proceedings involving his censure, removal, retirement, suspension, or other disciplinary action, a judge has the right, and shall be afforded 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 also has the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, documents, or tangible things. (b) If the Commission orders the testimony transcribed a copy thereof shall be made available to the judge. If the Commission does not transcribe the testimony, the judge shall have the right without any order or approval to order his own transcript at his own expense. (c) If the judge is adjudged insane or incompetent, or if it appears to the Commission hearing panel at any time during the proceedings that he the judge is not competent to act for himselfon the judge's own behalf, the Commission panel shall appoint a guardian ad litem unless the judge has a guardian who will represent him the judge. In the appointment of a guardian ad litem, preference shall be given, whenever possible, to members of the judge's immediate family. The guardian or guardian ad litem 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 these rules provide for serving or giving notice or sending any matter to the judge, the notice or matter shall must be served, given, or sent to the guardian or guardian ad litem.
14 19. SUBPOENAS AND DEPOSITIONS
Judicial Conduct Commission, a hearing panel, disciplinary counsel, or the judge shall have has the power of subpoena and power to order the deposition of a person as provided by Sections 27-23-06, 27-23-09, N.D.C.C., or as provided by the North Dakota Rules of Civil Procedure.
15 20. AMENDMENTS TO NOTICE OR ANSWER The master, at any time before the conclusion of the hearing, or the Commission A hearing panel, at any time before its determination, may allow or require amendments to the notice of formal proceedings charges and may allow amendments to the answer. The notice may be amended to conform to proof or set forth additional facts, whether occurring before or after the commencement of the hearing. If an amendment is made, the judge shall be given reasonable time both to answer the amendment and to prepare and present his a defense against the matters charged thereby in the amendment. RULE 16. REPORT OF MASTER (a) Within 30 days after the conclusion of the hearing before a master, he shall prepare and transmit to the Commission a report containing a brief statement of the proceedings and his findings of fact and conclusions of law with respect to the issues presented by the notice of formal proceedings and the answer thereto, or if there be no answer, his findings of fact and conclusions of law with respect to the allegations in the notice of formal proceedings. The master may include in the report a recommendation for censure, removal, retirement, suspension, or other disciplinary action against the judge, or for dismissal of the proceedings. If the findings and conclusions support the grounds alleged for censure, removal, retirement, suspension, or other disciplinary action, the report shall be accompanied by an original and 8 copies of a transcript of the proceedings before the master. (b) Upon receiving the report of the master, the Commission shall promptly mail a copy to the judge. RULE 17. OBJECTIONS TO REPORT OF MASTER Within 15 days after the mailing of the copy of the master's report to the judge, the judge may file with the Commission an original and 8 legible copies of a statement of objections to the report of the master, setting forth all objections to the report and all reasons in opposition to the findings as sufficient grounds for censure, removal, retirement, suspension, or other disciplinary action. RULE 18. APPEARANCE BEFORE COMMISSION If a statement of objections to the report of the master is not filed within the time provided, the Commission may adopt the findings of the master without a hearing. If the statement is filed, or if the Commission in the absence of the statement proposes to modify or reject the findings of the master, the Commission shall give the judge and the counsel appointed by the Commission an opportunity to be heard orally before the Commission, and written notice of the time and place of the hearing shall be mailed to the judge at least 10 days prior thereto.
19 21. HEARING ADDITIONAL EVIDENCE (a) The Commission hearing panel may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order shall must set the time and place of hearing and shall must indicate the matters on which the evidence is to be taken. A copy of such the order shall must be sent by mail to the judge at least 10 days prior to before the date of hearing. (b) In any case in which a master has been appointed, the hearing of additional evidence shall be before the master, and the proceedings therein shall be in conformance with the procedure for the original hearing, Rule 11 through Rule 18.
20 22. EXTENSION OF TIME
chairman of the Commission chair of the hearing panel may extend for periods not to exceed 30 days the time for filing an answer , or for the commencement of a hearing before the Commission, for the transmittal of the master's report to the Commission, and for filing a statement of objections to the report of the master. The presiding master similarly may extend the time for the commencement of a hearing before the master. RULE 21. COMMISSION ACTION If the Commission finds good cause, it shall recommend to the Supreme Court the censure, removal, retirement, suspension, or other disciplinary action against the judge. The affirmative vote of a majority of the Commission members is required for a recommendation of censure, removal, retirement, suspension, or other discipline against a judge or for dismissal of the proceedings. RULE 22. RECORD OF COMMISSION 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 mailed to the judge. In all proceedings resulting in a recommendation to the Supreme Court for censure, removal, retirement, suspension, or other disciplinary action, 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 proceeding. RULE 23. CERTIFICATION OF COMMISSION RECOMMENDATION TO SUPREME COURT Upon making a determination recommending the censure, removal, retirement, suspension, or other disciplinary action against a judge, the Commission shall promptly file a copy of the recommendation certified by the chairman of the Commission, together with the transcript and the findings and conclusions, with the Clerk of the Supreme Court and shall immediately mail the judge notice of such filing, together with a copy of the recommendations, findings, and conclusions.
RULE 23. REVIEW BY SUPREME COURT
A. Briefs and Supplementary Filings.
(1) Upon receipt of the record and report filed under Rule 16F, the clerk of the supreme court shall notify disciplinary counsel and the respondent of the time within which briefs must be filed. Within 50 days after service of the report under Rule 16F, disciplinary counsel and the respondent may file briefs limited to exceptions filed under Rule 16G.
(2) If the Supreme Court desires an expansion of the record or additional findings, it may remand the case to the hearing panel with appropriate directions, retain jurisdiction, and withhold action pending receipt of the additional filing.
(3) The Supreme Court may order additional briefs or oral arguments as to the entire case or specified issues.
B. Stay for Further Proceedings. If during review by the Supreme Court the commission receives another complaint against the respondent, disciplinary counsel shall advise the court. The court may stay its review pending the disposition of the second complaint. The court may impose a single sanction covering all recommendations for discipline against a respondent.
(1) The Supreme Court shall file a written decision dismissing the case or imposing a sanction. All decisions issued by the court must be published in the official reports for the guidance of other judges and for public information.
(2) The court may accept, reject, or modify in whole or in part the findings and conclusions of the hearing panel.
(3) The court may assess costs against the respondent if it finds the respondent committed misconduct.
RULE 24. REVIEW BY SUPREME COURT (a) A petition to the Supreme Court to modify or reject the recommendation of the Commission for censure, removal, retirement, suspension, or other disciplinary action against a judge may be filed within 30 days after the filing with the Clerk of the Supreme Court of a certified copy of the recommendation complained of. The petition shall be verified, be based on the record, specify the grounds relied on, and be accompanied by the judge's brief and proof of service on the secretary of the Commission. At least 20 days before the return day the Commission shall serve upon the judge and file with the Clerk of the Supreme Court a responsive brief. Within 15 days after service of the Commission's brief the judge may file with the Clerk of the Supreme Court a reply brief which shall be served on the secretary of the Commission. (b) Upon failure to file a petition for review within the time provided, the Supreme Court shall consider the recommendation upon the record filed by the Commission and upon such further briefs or arguments the court may require. (c) The number, form and contents of briefs shall be in conformity with Rules 28 and 31, N.D.R.App.P. RULE 25. DECISION BY SUPREME COURT The Supreme Court shall review the record of the proceedings on the law and the facts and shall file a written opinion and judgment directing censure, removal, retirement, suspension, other disciplinary action or dismissal of the complaint as it finds just and proper, or the court may accept, reject or modify, in whole or in part, the recommendations of the Commission.
26 24. MOTION FOR REHEARING
Respondent may file a petition for rehearing
pursuant to underRule 40, N.D.R.App.P.
RULE 25. CASES INVOLVING ALLEGATIONS OF MENTAL ORPHYSICAL 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 must be conducted in accordance with the procedures for disciplinary proceedings, except:
(1) the purpose of the incapacity proceedings is to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions;
(2) all of the proceedings are confidential;
(3) the hearing panel may appoint a lawyer to represent the judge if the judge is without representation; and
(4) if the Supreme Court concludes the judge is incapacitated to hold judicial office, it may enter any order appropriate to the circumstances, the nature of the incapacity, and the probable length of the period of incapacity, including:
(a) retiring the judge;
(b) transferring the judge to judicial incapacity inactive status;
(c) if the Supreme Court concludes the judge is incapacitated to practice law, transferring the judge to lawyer disability inactive status; or
(d) if a judicial disciplinary proceeding against the judge is pending and the Supreme Court concludes the judge is incapacitated to defend, deferring the disciplinary proceeding, under Section D(2).
C. Involuntary Commitment or Adjudication of Incompetency. If a judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the Supreme Court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the judge to both lawyer disability inactive and judicial incapacity inactive status. A copy of the order must be served, in the manner the Supreme Court directs, upon the judge, the judge's guardian, or the director of the institution to which the judge has been committed.
D. Inability to Properly Defend in a Disciplinary Proceeding.
(1) If in the course of a disciplinary proceeding a judge alleges an inability to assist in the defense due to mental or physical incapacity, disciplinary counsel shall notify the Supreme Court. The Court shall immediately transfer the judge to lawyer disability inactive and judicial incapacity inactive status pending a determination by the Court of the incapacity under Section B. A determination by the hearing panel that the judge is able to assist in the judge's own defense is interlocutory and may not be appealed before entry of a final order in the proceeding.
(2) If, under Section B, the Supreme Court determines the claim of inability to defend is valid, the disciplinary proceeding must be deferred. Any investigation of the disciplinary complaint may continue. The judge shall be retained on lawyer and judicial incapacity inactive status until the Supreme Court grants a petition for reinstatement to active status as a lawyer or judge. If the Supreme Court determines that the petition should be granted, the Court must also determine the disposition of the interrupted disciplinary proceedings.
(3) If, under Section B, the Supreme Court determines that the claim of inability to defend is invalid but that the judge is incapacitated to hold judicial office, the disciplinary proceeding must resume. The judge must be retained on judicial incapacity inactive status.
(4) The raising of mental or physical condition as a defense to or in mitigation of formal charges constitutes a waiver of medical privilege.
E. Stipulated Disposition.
(1) The hearing panel shall designate one or more qualified medical, psychiatric, or psychological experts to examine the judge before the hearing on the matter. The hearing panel may designate an expert agreed upon by disciplinary counsel and the judge. The expert or experts shall report to the Supreme Court and the parties.
(2) After receipt of the examination report, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and an order. The stipulated disposition must be submitted to the hearing panel for a recommendation to the Supreme Court of approval or rejection. The final decision on the recommendation must be made by the Supreme Court.
(3) If the Supreme Court accepts the stipulated disposition, the Supreme Court shall enter an order in accordance with its terms. If the stipulated disposition is rejected by the Supreme Court, it shall be withdrawn and cannot be used against the judge in any proceedings. If the Supreme Court rejects the stipulated dispositions, the Court shall order the hearing to proceed.
F. Reinstatement from Incapacity Inactive Status.
(1) A judge transferred to incapacity inactive status may not resume active status except by order of the Supreme Court.
(2) Any judge transferred to incapacity inactive status is entitled to petition for transfer to active status once a year or at whatever shorter intervals the Supreme Court may direct in the order transferring the judge to incapacity inactive status or any modifications thereof.
(3) Upon the filing of a petition for transfer to active status, the Supreme Court 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 the judge by qualified medical or psychological experts designated by the Supreme Court.
(4) With the filing of a petition for reinstatement to active status, the judge is required to disclose the name of each psychiatrist, psychologist, physician, and hospital or other institution by whom or in which the judge has been examined or treated since the transfer to incapacity inactive status. The judge shall furnish to the Supreme Court written consent to the release of information and records relating to the incapacity if requested by the Supreme Court or court-appointed medical or psychological experts.
(5) If a judge transferred to lawyer incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the Supreme Court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status as a lawyer.
27 26. AMENDMENT TO RULES
The Commission may petition the Supreme Court for further rules of implementation or for needed amendments of these rules. New rules or amendments to existing rules may also be adopted by the Supreme Court under its rule making power.
28 27. DISCIPLINE, SUSPENSION, RETIREMENT, OR REMOVAL BY CONSENT
COMPLIANCE WITH ETHICS ADVISORY OPINION
Upon consent of the judge, an order of censure, removal, retirement, suspension, or other disciplinary action may be entered by the Supreme Court at any stage of proceedings under these rules. Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference shall constitute is evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding.
29 28. RULES APPLICABLE IN SUPREME COURT
Proceedings in the Supreme Court shall be governed by the Rules of Appellate Procedure to the extent applicable.
30 29. REMEDIES NOT EXCLUSIVE
These rules do not replace or supersede any criminal penalties provided by law.
These rules, as amended, become effective on _______________. Any matter then pending with respect to which a formal hearing has been commenced must be concluded under the procedure existing before the effective date of these rules.
of North Dakota
Introduced by ____ BILL NO. ____
A BILL for an Act to amend and reenact sections 27-23-01, 27-23-02, 27-23-03, 27-23-06, 27-23-08, and 27-23-09 of the North Dakota Century Code, relating to the creation, composition, duties, and operation of the commission on judicial conduct.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 27-23-01 of the 1995 supplement to the North Dakota Century Code is amended and reenacted as follows:
27-23-01. Definitions. In this chapter, unless the context or subject matter otherwise requires:
Chairman Chair" means the chairman chair of the commission and includes any acting chairman chair.
2. "Commission" means the
commission on judicial conduct commission.
Counsel Disciplinary Counsel" means one or more attorneys appointed by the commission to gather and present evidence and act on its behalf in proceedings before a master or the commission, a hearing panel, or inthe supreme court.
4. "Hearing Panel" means a four member panel consisting of at least two citizen members of the commission, appointed by the chair to conduct a hearing and make recommendations after the filing of formal charges or a petition for transfer to incapacity inactive status.
4 5. "Judge" means a justice of the supreme court, a judge of the temporary court of appeals, a judge of the district court, a judicial referee, a judge of a municipal court, and, in the case provided in section 29-01-14, a small claims court referee. 5. "Master" means one or more judges, active or retired, or attorneys appointed by the supreme court upon the request of the commission; or one or more members of the commission designated by the commission to hold hearings and make findings of fact on issues of fact arising in proceedings under this chapter.
6. "Shall" is mandatory, but not jurisdictional, and "may" is permissive.
SECTION 2. AMENDMENT. Section 27-23-02 of the 1995 supplement to the North Dakota Century Code is amended and reenacted as follows:
27-23-02. Creation and composition of commission, terms of office, appointment, and powers. The
commission on judicial conduct is hereby created to consist commission consists of two judges of the district court, one lawyer who is licensed to practice law in this state, and four citizens who are not judges, retired judges, or lawyers. Members representing the district court must be appointed by their state association and the lawyer member must be appointed by the executive committee board of governors of the state bar association of North Dakota. The citizen members must be appointed by the governor. The term of each member is three years. Initially, two members shall serve for three years, two members shall serve for two years, and three members shall serve for one year; as determined by lot. No Amember may not serve more than two full three-year terms. Membership terminates if a member ceases to hold the position that qualified him the member for appointment. A vacancy must be filled by the appointing power for the remainder of the term. Any appointment to fill a vacancy not made within forty-five days after the vacancy occurs or the term of office ends must e made by the supreme court. The commission shall select one of its members as chairman chair.
The commission has the power to investigate complaints against any judge in the state and the chair may appoint a hearing panel to conduct hearings concerning the discipline, removal,
or retirement, or transfer to incapacity inactive status of any judge.
SECTION 3. AMENDMENT. Section 27-23-03 of the North Dakota Century Code is amended and reenacted as follows:
27-23-03. Other powers.
1. A judge is disqualified from acting as a judge, without loss of salary, while there is pending:
a. An indictment or an information charging
him the judge in the United States with a crime punishable as a felony under North Dakota or federal law; or
b. A recommendation submitted by the commission to the supreme court for
his the judge's removal or retirement.
2. On recommendation of the commission or on its own motion, the supreme court may suspend a judge from office without salary when, in the United States,
he the judge pleads guilty or no contest or is found guilty of a crime punishable as a felony under North Dakota or federal law or of any other crime that involves moral turpitude under that law. If his the judge's conviction is reversed, suspension terminates , and he the judge must be paid histhe salary for the period of suspension. If he the judgeis suspended and his the conviction becomes final, the supreme court shall remove him the judge from office.
3. On recommendation of the commission or a hearing panel ofthe commission, the supreme court may (a) retire a judge for disability that seriously interferes with the performance of
his the judge's duties and is, or is likely to become, permanent; and (b) transfer, with the possibility of reinstatement, a judge to incapacity inactive status; or (c) publicly censure or remove a judge for action that constitutes willful misconduct in office, willful failure to perform his duties asprescribed by law or by administrative rule or regulationof the supreme court, willful violation of provisions ofthe code of judicial conduct as adopted by the supreme court, or habitual intemperance. No proceedings hereunder The commission may impose private, non-public discipline for minor misconduct that does not warrant public discipline or may direct disposition of allegations of misconduct in other manners considered appropriate. A proceeding under this section or implementing rules of the supreme court may not be instituted for alleged acts occurring more than six years prior to before receiving a complaint.
4. A judge retired by the supreme court must be considered to have retired voluntarily. A judge removed by the supreme court is ineligible for judicial office, and pending further order of the court,
he the judge is suspended from practicing law in this state.
5. The supreme court shall make rules implementing this chapter and providing for confidentiality of proceedings.
6. The procedure provided for
herein in this section may be used in addition to the impeachment proceedings provided for in the Constitution of North Dakota as applicable to district and supreme court judges.
7. The commission may employ or share the employment of such officers, assistants, and other employees as it deems necessary for the performance of the duties and exercise of the powers conferred upon the commission
and upon the masters; may arrange for and compensate medical and other experts and reporters; may arrange for attendance of witnesses, including witnesses not subject to subpoena; and may pay from funds available to it all expenses reasonably necessary for effectuating the purposes of this chapter, whether or not specifically enumerated herein. The attorney general shall, if requested by the commission, act as its counsel generally or in any particular investigation or proceeding. The commission may employ special counsel from time to time whenever it deems necessary.
8. Each member of the commission
and each master must be allowed expenses for travel, board, and lodging incurred in the performance of his official duties, as provided in sections 44-08-04 and 54-06-09.
No An act of the commission or hearing panel is not valid unless concurred in by at least a majority of its members.
SECTION 4. AMENDMENT. Section 27-23-06 of the North Dakota Century Code is amended and reenacted as follows:
27-23-06. General powers of commission
or masters, hearing panel, and disciplinary counsel. In the conduct of investigations and formal proceedings, the commission, hearing panel, or the masters disciplinary counsel may:
1. Administer oaths.
2. Order and otherwise provide for the inspection of books and records.
3. Issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, and testimony relevant to any such investigation or formal proceeding.
The power to administer oaths, to issue subpoenas, or to make orders for or concerning the inspection of books and records may be exercised by a member of the commission or a
master hearing panel, unless the commission shall otherwise determine.
SECTION 5. AMENDMENT. Section 27-23-08 of the North Dakota Century Code is amended and reenacted as follows:
27-23-08. Petition for order compelling person to attend or testify or produce writings or things - Service of order to appear before court - Order to appear before commission or
masters hearing panel - Contempt. If any person refuses to attend, testify, or produce any writings or things required by subpoena, the commission or the masters hearing panel may petition the district court for the county in which the hearing is pending for an order compelling a person to attend and testify or produce the writings or things required by the subpoena before the commission or the mastershearing panel. The court shall order a person to appear before it at a specified time and place and then and there to show cause why he the person has not attended or testified or produced the writings or things as required. A copy of the order must be served upon him the person. If it appears to the court that the subpoena was regularly issued, the court shall order a person to appear before the commission or the masters hearing panel at the time and place fixed in the order and testify or produce the required writings or things. Upon failure to obey the order, a person must be punished as provided in section 12.1-10-02.
SECTION 6. AMENDMENT. Section 27-23-09 of the North Dakota Century Code is amended and reenacted as follows:
27-23-09. Deposition. In any investigation or formal proceeding under this chapter, the commission, the hearing panel,or
the masters disciplinary counsel, pursuant to under the North Dakota Rules of Civil Procedure, may order the deposition of a person residing within or without the state to be taken.
Effective January 1, 1980
POWERS AND DUTIES OF THEAdministrative
CLERK OF THE SUPREME COURTRule 5
Pursuant to Section 87 Under Article VI, Section 3, of the North Dakota Constitution and Chapter 27-03, NDCC, the Supreme Court of North Dakota promulgates the following Administrative Rule relating to the powers, duties, qualifications, and term of office of the Clerk of the Supreme Court:
I. The minimum
qualifications qualification of the Clerk of the Supreme Court shall beis completion of four years of college or the equivalent in a court-related administrative position.
II. The Clerk of the Supreme Court
shall be is appointed by the Chief Justice with the approval of the justices of the Supreme Court to serve and serves at the pleasure of the Court pursuant to Section 87 of the North Dakota Constitution.
III. The Clerk of the Supreme Court
shall serve serves as Secretary-Treasurer of the State Bar Board as provided by Section 27-11-10 NDCC and shall serve serves as Secretary of the Disciplinary Board of the Supreme Court and as Secretary of the Judicial Qualifications Commission.
IV. Under the authority of the justices of the Supreme Court and the supervision of the Chief Justice or Administrative Justice, the Clerk of the Supreme Court
shall have hasauthority to:
A. employ and supervise such deputies, assistants and staff as may be necessary;
B. supervise the calendaring and assignment of cases, court records, statistical reporting and filing, distribution and publication of opinions of the Supreme Court;
C. serve as recording secretary for meetings of the justices;
D. serve as liaison with the public, members of the Bar, and the news media;
E. grant motions or applications for orders which are supported by stipulations signed by counsel for the respective parties consenting to the relief sought;
F. consider and determine motions and petitions seeking:
1. to file or extend the time for filing briefs, records on appeal, transcripts, pleadings and other papers provided for by the North Dakota Rules of Appellate Procedure; and to deny extensions of time for filing briefs in excess of thirty days;
2. to consolidate cases;
3. to file amicus curiae briefs;
4. to file briefs in excess of the prescribed number of pages;
5. to remand record to the trial court for purposes of preparation of the record;
6. to direct correction in record upon agreement of parties and/or court reporter;
7. to substitute parties;
8. to enlarge time for argument;
9. to appeal in forma pauperis;
10. to refer to the appropriate trial court requests for appointment of counsel for an indigent appellant;
11. to stay or recall a mandate;
12. to advance or continue cases for oral argument;
13. to assign a judge when a demand for change of judge is filed;
14. to rule on other purely procedural matters relating to any action, proceeding, or process in the Supreme Court preparatory to hearing or a decision on the merits.
Any person adversely affected by orders issued by the Clerk of the Supreme Court under Section F may request reconsideration, vacation or modification of
such the order pursuant to underRule 27(b), NDRAppP.
The Clerk of the Supreme Court shall perform other services and assume other responsibilities as the Chief Justice or Justices of the Supreme Court may direct.
The effective date of this rule is January 1, 1980.
26th _____ day of September _____________, 1979 1996.
Penny Miller, Clerk
North Dakota Supreme Court
[Adopted effective January 1, 1980; Amended effective ________________.]