RULE 25. CASES INVOLVING ALLEGATIONS OF MENTAL OR PHYSICAL 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) the raising of a mental or physical condition as a defense to, or in mitigation of, formal charges or the raising of a claim of inability to participate in a disciplinary investigation or assist in the defense of formal incapacity proceedings by the judge constitutes a waiver of medical privilege. The judge shall be required to provide authorizations to obtain any and all medical records and identify treatment providers relevant to the question of whether the judge has a mental or physical incapacity that may affect the judge’s ability to perform judicial duties;

(5) if a judge is formally charged with an incapacity or raises a disability as a defense to misconduct, the judge’s waiver of medical privilege shall also be deemed consent to submit to one or more physical or mental examinations by an independent medical expert and consent for any testing deemed necessary by the expert. The independent medical expert may be medical, psychiatric, or An appointed hearing panel of the commission will approve or select any expert. The medical expert shall report the results of the examination and any testing to the hearing panel, disciplinary counsel, and the judge. If the judge refuses to submit to the examination or testing, the hearing panel will decide the issue requiring the examination or testing adversely to the judge;

(6) the commission will bear the costs of having the independent medical examinations conducted that were authorized by the hearing panel. In its discretion, the hearing panel or the supreme court may direct that any other costs incurred by the Judicial Conduct Commission related to proceedings under this rule be paid by the judge; and

(7) 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) transferring the judge to lawyer disability inactive status if the supreme court concludes the judge is incapacitated to practice law; or

(d) deferring the disciplinary proceeding if a judicial disciplinary proceeding against the judge is pending and the supreme court concludes the judge is incapacitated to defend 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 supreme court shall immediately transfer the judge to lawyer disability inactive and judicial incapacity inactive statuses pending a determination by the supreme 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 statuses 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) After receipt of the supporting medical documentation, 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.

(2) 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 supreme 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 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 transfer to incapacity inactive status. The judge shall furnish the supreme court written consent to release of information and records relating to the incapacity if requested by the supreme court or court-appointed medical, psychiatric, or psychological experts.

(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, psychiatric, 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.

G. Confidentiality Exceptions. Notwithstanding provisions of this rule to the contrary, the fact a judge is subject to a complaint alleging incapacity may be disclosed to the general public or to a specified person when:

(1) Confidentiality of the proceedings has been waived by the judge who is the subject of the commission’s investigation; or

(2) The commission determines disclosure is necessary:

(a) in the interests of justice and to protect the public;

(b)because an emergency situation exists; or

(c) in response to a court order or subpoena.