RULES OF THE JUDICIAL CONDUCT COMMISSION
To promote effective disciplinary enforcement in this state and among jurisdictions, the uniform terms set forth below are used.
"Complaint" means information in any form from any source received by the commission which alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated and includes disciplinary counsel's written statement of the allegations if there is no written complaint from another person.
"Deferred discipline agreement" means a confidential agreement between the judge and the commission for the judge to undergo treatment, participate in education programs, or take other corrective action that is only available as a response to minor misconduct that can be addressed through treatment or a rehabilitation program.
"Disciplinary counsel" means 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" means the document charging the judge with specific acts of misconduct or with a specific incapacity.
"Hearing panel" means the panel of the commission which conducts hearings on formal charges. See Rule 3.
"Incapacity" means a mental or physical condition adversely affecting a judge's ability to perform judicial functions and does not include a disability that does not adversely affect a judge's performance of judicial functions.
"Incapacity inactive status" means 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" means a non-public sanction that is imposed on a judge by the commission with the consent of the judge before the filing and service of formal charges and which is available 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 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 private practice of law or serve in a judicial capacity.
B. Powers and Duties. Disciplinary counsel shall:
(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.
RULE 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 the judge's own discipline, censure, removal, or retirement. In proceedings involving a Justice of the Supreme Court, the Supreme Court shall appoint in 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 chair or presiding officer of the district judges association shall appoint another of its members to serve in the judge's place in that proceeding.
RULE 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 the commission may disclose information:(a) when the commission has determined 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.
C. If a judge is publicly charged in proceedings before the Commission resulting in substantial unfairness to 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 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 hearing panel, or for the judge, shall testify under oath.
All notices, papers and pleadings delivered or mailed to a judge pursuant to these rules 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.
RULE 7. IMMUNITY FROM CIVIL SUITS
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 proceeding based thereon may be instituted against any complainant or witness. Members of the commission, counsel, and staff are absolutely immune in any civil proceeding 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.
RULE 10. FILING OF COMPLAINTS, SCREENING, AND INVESTIGATION
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 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 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:(a) dismissal;
(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. If 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.
RULE 11. FORMAL 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, 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.
RULE 12. ANSWER
Within 20 days after service of formal charges, the judge shall file with the chair of the hearing panel a written answer and serve a copy on disciplinary counsel. The notice of formal proceedings and answer constitute the pleadings and no further pleadings may be filed, except amendments, and no motion challenging the adequacy of the pleadings 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. Unless excused for incapacity, 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 may be 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 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 16. HEARING
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.
RULE 17. EVIDENCE
At a hearing before a hearing panel, the admissibility of evidence must be determined, insofar as circumstances permit, in accordance with the Rules of Evidence, and oral evidence must be taken only on oath or affirmation.
RULE 18. APPOINTMENT OF GUARDIAN AD LITEM
If the judge is adjudged incompetent, or if it appears to the hearing panel at any time during the proceedings that the judge is not competent to act on the judge's own behalf, the panel shall appoint a guardian ad litem unless the judge has a guardian who will represent 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.
RULE 19. SUBPOENAS AND DEPOSITIONS
The Commission, a hearing panel, disciplinary counsel, or the judge 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.
RULE 20. AMENDMENTS TO NOTICE OR ANSWER
A hearing panel, at any time before its determination, may allow or require amendments to the notice of formal 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 a defense against the matters charged in the amendment.
RULE 21. HEARING ADDITIONAL EVIDENCE
The hearing panel may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order must set the time and place of hearing and must indicate the matters on which the evidence is to be taken. A copy of the order must be sent by mail to the judge at least 10 days before the date of hearing.
RULE 22. EXTENSION OF TIME
The 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
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 or commission with appropriate directions, retain jurisdiction, and withhold action pending receipt of the additional filing. The Supreme Court, at its discretion, may refer a case received from a hearing panel to the commission with appropriate directions.
(3) The Supreme Court may order additional briefs or oral arguments on 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 inform 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 or commission.
(3) The court may assess costs against the respondent if it finds the respondent committed misconduct.
RULE 24. MOTION FOR REHEARING
Respondent may file a petition for rehearing under Rule 40, N.D.R.App.P.
RULE 25. CASES INVOLVING ALLEGATIONS OF MENTAL OR
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.
RULE 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.
RULE 27. COMPLIANCE WITH ETHICS ADVISORY OPINION
Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference is evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding.
RULE 28. RULES APPLICABLE IN SUPREME COURT
Proceedings in the Supreme Court shall be governed by the Rules of Appellate Procedure to the extent applicable.
RULE 29. REMEDIES NOT EXCLUSIVE
These rules do not replace or supersede any criminal penalties provided by law.
These rules, as amended, become effective on August 1, 1997. Any matter then pending with respect to which a formal hearing has begun must be concluded under the procedure existing before the effective date of these rules.