RULE 10.1. FILING OF INCAPACITY COMPLAINTS, SCREENING, AND INVESTIGATION

A. Filing of Incapacity 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. Within seven days, counsel shall evaluate all information coming to counsel’s attention by complaint or from other sources that alleges incapacity. If counsel concludes the information would not constitute incapacity if it were true, the complaint may be summarily dismissed. At least every 30 days, counsel shall submit to the commission a list of all incapacity 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 submitted, request that the commission further consider a particular 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 submitted 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 incapacity if true, counsel shall conduct an investigation.

B. Investigation 

(1) Disciplinary counsel may conduct interviews and examine evidence to determine whether grounds exist to believe an allegation of incapacity. Counsel must make this initial determination within 30 days after commencing an investigation unless good cause is shown for the delay.

(2) If disciplinary counsel believes there is evidence supporting an allegation of incapacity against a judge, counsel shall serve under N.D.R.Civ.P. 4 the following notice on the judge:

(a) a specific statement of the allegation being investigated and any rulesallegedly violated, with the provision that the investigation can beexpanded if appropriate;

(b) the judge’s opportunity to respond to the allegation within 20 days afterservice, and notice that failure to respond may be deemed an admissionthat the allegation is true for purposes of the proceeding;

(c) the judge’s opportunity to meet with disciplinary counsel; and

(d) the name of the complainant.

(3) Disciplinary counsel is authorized to issue subpoenas under Rule 19 and shall conduct all investigations.

(4)The judge may appear with counsel and is authorized to issue subpoenas.

C. [unused]

D. Disposition After Investigation.

(1) Upon the conclusion of an investigation, disciplinary counsel may recommend to the commission:

(a) dismissal;

(b) the filing of a petition for transfer to incapacity status; or

(c) the filing of formal misconduct charges.

(2) Within seven days after receiving the recommendation of counsel, the commission must adopt, reject, or modify the recommendations of disciplinary counsel or direct that counsel conduct further investigation.

(3) Within seven days of the commission finding that there is probable cause to believe the judge is incapacitated, it shall:

(a) dismiss the matter if the judge has retired; or

(b) direct that disciplinary counsel file formal incapacity proceedings. Immediately after service of the petition, the judge shall be placed in incapacity inactive status.

E. Immunity from Criminal Prosecution. If a witness invokes the privilegeagainst self-incrimination as a basis for refusing to answer a question orproduce other evidence that may be relevant to an incapacity proceeding,disciplinary counsel may apply to the district court for a grant of immunity fromcriminal prosecution and shall give notice of the application to the state’sattorney and the attorney general. If the court grants the order, the witness maynot refuse to comply with the order on the basis of the witness’s privilege againstself-incrimination, but no testimony or other evidence compelled under such anorder may be used against the witness in any criminal case. The witness maybe prosecuted for perjury or contempt committed in answering or failing toanswer in accordance with the order. If the court denies the order, and thewitness continues to refuse to testify, an adverse inference may be drawn.